New South Wales Court of Appeal CITATION: FLETCHER INTERNATIONAL EXPORTS PTY LIMITED v BARROW & ANOR [2007] NSWCA 244 HEARING DATE(S): 15 June 2007 JUDGMENT DATE: 13 September 2007 JUDGMENT OF: Mason P at 1; Santow JA at 119; Tobias JA at 120 DECISION: Appeal dismissed with costs CATCHWORDS: WORKERS' COMPENSATION – Liability to pay compensation – liability of employer – other cases – liability of insurer – where employer became self-insured – where injury degenerative over time – whether injury a disease – Workers Compensation Act 1987, s 16 - ADMINISTRATIVE LAW – Judicial review – grounds of review – procedural fairness – determining matter on the papers – whether Commission required to notify parties of decision to determine matter on the papers – having regard to material beyond the record of Arbitration – Workplace Injury Management and Workers Compensation Act 1998, s 354(6) - ADMINISTRATIVE LAW – Judicial review – grounds of review – jurisdictional matters – whether Arbitrator acted outside jurisdiction in determining claim – where claim for compensation non-compliant with WorkCover Guidelines – whether proceedings a nullity – Workplace Injury Management and Workers Compensation Act 1998, s 260 – WorkCover Guidelines - ADMINISTRATIVE LAW – Judicial review – procedure and evidence – evidence – whether no evidence to support findings of fact LEGISLATION CITED: Workplace Injury Management and Workers Compensation Act 1998 Workers Compensation Act 1987 Aluminium Louvres & Ceilings Pty Ltd v Xue Qin Zheng [2006] NSWCA 34 Armao v Ladue Holdings Pty Ltd (1992) 8 NSWCCR 440 Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364 CASES CITED: Cottons Glass & Aluminium Pty Ltd v Handsaker [2006] NSWCCPD 205 Fletcher International Exports Pty Ltd v Barrow [2006] NSWWCCPD 119 Kurrajong Holdings t/as The Gardeners Inn v Carrette [2004] NSWWCCPD 8 Perry v Tanine Pty Ltd t/as Ermington Hotel (1998) 16 NSWCCR 253 Watson v Hanimex Colour Services Pty Ltd (1991) 8 NSWCCR 190 FLETCHER INTERNATIONAL EXPORTS LIMITED PARTIES: Thomas BARROW (First Respondent) CGU WORKERS COMPENSATION (NSW) LIMITED (Second Respondent) FILE NUMBER(S): CA 40417/06 Appellant: L King SC/ D G Saul COUNSEL: First Respondent: M J Joseph SC/ J W Catsanos Second Respondent: P Webb QC/ R A Stanton Appellant: Leigh Virtue & Associates SOLICITORS: First Respondent: Oates & Smith Second Respondent: Sparke Helmore LOWER COURT JURISDICTION: Workers Compensation Commission LOWER COURT FILE NUMBER(S): WCC7860-04 LOWER COURT JUDICIAL OFFICER: Acting Deputy President Deborah Moore LOWER COURT DATE OF DECISION: 14 June 2006 THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40417/2006 WCC 7860-04 MASON P SANTOW JA TOBIAS JA Thursday 13 September 2007 FLETCHER INTERNATIONAL EXPORTS PTY LTD v Thomas BARROW & Anor The first respondent (the worker) was employed by the appellant (the employer) between 1990 and 23 May 2002. The second respondent (the insurer) was the employer's workers compensation insurer until 31 August 1999. Thereafter the employer was self-insured. The worker has had recurrent problems with his right shoulder from 1992 onwards and in December 2000 the worker notified the employer of an injury to his right upper arm and elbow. Thereafter the worker was treated by various doctors and certified for light duties. On 23 May 2002 the worker was dismissed when he was asked by the employer to go onto a new job and he refused, expressing concerns about his lack of training and skill. He agreed that the termination had nothing to do with his ability to work but maintained that he was nevertheless unfit at the time. In September 2003 the employer challenged its liability to pay workers compensation benefits to the worker on the grounds that the alleged injury, said to have occurred after 4pm on 31 August 1999, was not work related and his employment in that period had not been a substantial contributing factor to the alleged injuries. The employer directed the worker to deal with the insurer for injuries prior to 31 August 1999. On 17 May 2004 the worker referred the matter to the Workers Compensation Commission. The employer was named the respondent and served with the Application. The insurer was served also. The Arbitration took place on 11 March 2005. The Commission determined that the worker received an injury to his right shoulder between 1990 and 23 May 2002 and that the injury arose out of or in the course of his employment with the employer. It was found that the worker was suffering from an aggravation of a disease, being a degenerative condition to his right shoulder as a result of over use and repetitive trauma while working for the employer. The employer was ordered to pay compensation to the worker. The employer appealed the decision, however only the worker was served with a copy of the process. The insurer appeared to have been overlooked. The appeal was determined on the papers on 14 June 2006 and the outcome was favourable to the worker. The employer then appealed to the Court of Appeal under s 353 of the Workplace Injury Management and Workers Compensation Act 1998 (the WIM Act). The employer argued that the Arbitrator did not have jurisdiction to entertain the worker's application because the worker's application was not in accordance with the WorkCover Guidelines, as required by s 260 of the WIM Act. The employer also argued that the decision was not open to the Arbitrator because there was no evidence that the worker was suffering from a disease or an aggravation of a disease. The employer also argued that there was want of procedural fairness in that the Arbitrator had regard to and relied upon material that was not in evidence without informing the employer and that this error was not cured when the matter went to the Presidential member by way of review. The employer also argued that there was a want of procedural fairness in the Deputy President's decision to proceed with the matter 'on the papers' and in the Presidential member's failure to notify the parties when she read and proposed to have regard to material beyond the record of arbitration. Held: (Mason P, Santow, Tobias JJA agreeing) Jurisdiction of the Arbitrator (1) There is no evidence to suggest that the findings were not open to the Arbitrator, let alone establish that some 'point of law' arises on the matter. (at [31]) Obiter (2) Non-compliance with the WorkCover Guidelines does not affect the jurisdiction of the Commission. (at [41], [46] and [48]) Kurrajong Holdings t/as The Gardeners Inn v Carrett [2004] NSWWCCPD 8, Cottons Glass & Aluminum Pty Ltd v Handsaker [2006] NSWWCCPD 205; questioned, overruled. No evidence (1) The Arbitrator's decision was open on the evidence referred to in the Reasons. The failure of an area of the body to cope with repeated stress imposed upon it, leading to pain and loss of function, is capable of being found to be a disease process. (at [60]-[61]) Armao v Ladue Holdings Pty Ltd (1992) 8 NSWCCR 440; Perry v Tanine Pty Ltd t/as Ermington Hotel (1998) 16 NSWCCR 253; approved. Procedural fairness complaints Material 'not in evidence' (1) The relevant documents were before the Arbitrator to the knowledge of all parties. The parties had and exercised the opportunity of questioning the worker on them and making submissions about them. (at [67], [77]) Aluminium Louvres & Ceilings Pty Ltd v Xue Qin Zheng [2006] NSWCA 34; referred to. Decision to determine matter 'on the papers' (2) The power to decide the matter on the papers is enlivened if the Commission is satisfied that sufficient information has been supplied. (at [94]) (3) The Presidential member addressed this matter and declared she was satisfied. The conclusion was open to the Presidential member. On the facts, the employer had no entitlement to, or legitimate expectation of, a notification that the Presidential member was contemplating dealing with the matter 'on the papers'. (at [94], [96]) (4) The worker's failure to resist an oral hearing does not have the consequence that an oral hearing is mandatory. (at [100]) Workplace Injury Management and Workers Compensation Act 1998, s 354(6); referred to. Failure to notify of decision to determine matter 'on the papers' (5) The inspection of the Arbitrator's notes and failure to notify the parties of this by the Presidential member was unremarkable. The notes would have been part of the Commission's records concerning proceedings before it. (at [102]-[104]) ORDERS: Appeal dismissed with costs IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40417/2006 WCC 7860-04 MASON P SANTOW JA TOBIAS JA Thursday 13 September 2007 FLETCHER INTERNATIONAL EXPORTS PTY LTD v Thomas BARROW & Anor Judgment 1 MASON P: Mr Barrow, the first respondent (the worker) was employed by the appellant (the employer) between 1990 and 23 May 2002. The second respondent, CGU Workers Compensation (NSW) Ltd (the insurer), was the employer's workers compensation insurer until 31 August 1999. Thereafter the employer was self-insured. 2 The worker was employed in various tasks, including that of a doorman, a slaughterman and a sheep handler. He had recurrent problems with his right shoulder from 1992 onwards. 3 On 4 December 2000 he notified the employer of an injury to his right upper arm and elbow. Thereafter he was treated by various doctors, including a general practitioner, Dr White, and an orthopaedic surgeon, Dr Rizkallah. He was certified for light duties for various periods. 4 The early workers compensation history is clouded. Nevertheless, there were various medical certificates as to light work duties that relate to the right shoulder. Correspondence from Dr Rizkallah to the claims manager of the employer refers to a 2000 claim number and seeks approval for surgery (eg Red 22). 5 On 8 April 2002 the worker injured his neck and was admitted to hospital for two days. This generated a separate compensation claim that was accepted on 8 May 2002 (Red 255). 6 On 23 May 2002 the worker was dismissed when he was asked by the employer to go onto a new job and he refused, expressing concerns about his lack of training and skill. He agreed in evidence that the termination of his employment had nothing to do with his ability to work (Red 352, 476, 498). But he maintained that he was nevertheless unfit at the time, due to the shoulder problem (Red 458, 476-7). 7 In July 2002 the employer's solicitor arranged for the worker to see a medico-legal consultant, Dr Kim Edwards (Red 299). Dr Edwards expressed the view that the worker had not sustained any injury in the course of his work. He nevertheless accepted the genuineness of the complaints and considered the worker fit for work that did not require him to use his right arm above shoulder height for prolonged periods or to use his outstretched arm in a forceful pushing or pulling motion for any prolonged period. 8 There were other medico-legal reports to the employer in 2003-04 obviously referable to compensation matters (Red 288, 292). 9 On 10 September 2003 the insurer made a without prejudice settlement offer with reference to ss66 and 67 entitlements stemming from a work related permanent impairment (Red 347). This appears not to have been accepted. 10 On 17 September 2003 the employer wrote to the worker's solicitor referring to "the claim that you have purported to make for the payment of lump sum compensation benefits". The letter stated that, so far as any alleged injury which is said to have occurred after 4pm on 31 August 1999, the employer was not prepared to pay any such benefits because the worker's alleged injury was not work related and his employment in that period had not been a substantial contributing factor to the alleged injuries (Red 411). As indicated, the employer had become a self-insurer after 31 August 1999. The letter directed the worker to deal with the insurer CGU as regards prior injuries. The worker was also informed of his right to refer the matter to the Workers Compensation Commission if he wished to dispute the employer's decision. 11 On 18 December 2003 the worker's solicitors made a formal claim on the insurer for compensation under ss66 and 67 (Red 256). This elicited a further settlement offer (Red 348, 349) that appears not to have been accepted. 12 On 17 May 2004 the worker's solicitors filed with the Commission an Application to Resolve a Dispute relating to weekly benefits compensation, medical expenses and a lump-sum claim. The employer was the named respondent. The Application was served upon the employer and also, subsequently, on the insurer. 13 The insurer filed a Reply to Application to Resolve a Dispute on 7 June 2004 (Red 334). A separate Reply was filed on behalf of the employer on 23 August 2004 (Red 274). 14 The Application and the two Replies attach bulky bundles of supporting documents that include statements, medical records and medical opinions. The employer's bundle also contains documents from the worker's personnel file. The Replies also set out issues in dispute (Red 275, 336). 15 The Commission was constituted by an Arbitrator for the purpose of the proceedings (see s375(1) of the Workplace Injury Management and Workers Compensation Act 1998 (the WIM Act)). There were teleconferences (Red 412, 413) and other preliminaries at which all three parties (the worker, the employer and the insurer) were represented. At these teleconferences the issues were clarified and disputes about the late filing of documents were resolved. 16 The arbitration took place on the 11 March 2005 before Mr Christopher Messenger (Red 449). The parties were represented by lawyers and there was oral evidence from the worker. 17 On 6 April 2005 the Commission published a Certificate of Determination to which was attached a statement of the Arbitrator's reasons. It was determined that the employer should pay weekly compensation from 23 May 2002 at the maximum statutory rate under s40 of the Workers Compensation Act 1987 (the WC Act) for a single person with two dependants, such weekly payments to continue in accordance with the provisions of that Act. It was also determined that the employer should pay expenses under s60 of the WC Act on production of accounts or receipts. The claim for lump sum entitlements under ss66 and 67 was scheduled for a teleconference within 42 days of the determination. Costs were awarded to the applicant. 18 The Arbitrator summarised his findings as follows: 32. In summary the resolution of the issues in dispute is as follows: • Between 1990 and 23 May, 2002, Thomas Ernest Barrow received an injury to his right shoulder arising out of or in the course of his employment as a Slaughterman with Fletcher International Exports Pty Ltd. • Thomas Ernest Barrow's employment was a substantial contributing factor to his injury. • Thomas Ernest Barrow was partially incapacitated for work as a result of his injuries. • Thomas Ernest Barrow's probable weekly earnings, but for the injury, had he continued to be employed in the same or some comparable employment, are $942.00 per week. • During Thomas Ernest Barrow's period of partial incapacity for work from 23 May, 2002 the average weekly amount he was earning or would be able to earn in some suitable employment from time to time after the injury was $492.00 per week. • Thomas Ernest Barrow is therefore entitled to weekly payments for the period of partial incapacity for work from 23 May, 2002 at the maximum Statutory Rate under Section 40 of the 1987 Act for a single person with two dependents. 19 Section 352 of the WIM Act conferred a right of appeal to the Commission, with leave of the Commission constituted by a Presidential member. The appeal is stated to be "by way of review of the decision appealed against" (sub-s(5)). See generally Watson v Hanimex Colour Services Pty Ltd (1991) 8 NSWCCR 190; Aluminium Louvres & Ceilings Pty Ltd v Xue Qin Zheng [2006] NSWCA 34 at [38] as to the distinction between a review and an appeal. Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against is not able to be given on appeal to the Commission except with the leave of the Commission (see sub-s(6)). 20 The Commission is enjoined to proceed with informality and despatch, subject of course to the dictates of procedural fairness except so far as they may have been expressly modified by statute. Section 354 of the WIM Act provides: 354 Procedure before Commission (1) 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. (2) The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits. (3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (4) Proceedings need not be conducted by formal hearing and may be conducted by way of a conference between the parties, including a conference at which the parties (or some of them) participate by telephone, closed-circuit television or other means. (5) Subject to any general directions of the President, the Commission may hold a conference with all relevant parties in attendance and with relevant experts in attendance, or a separate conference in private with any of them. (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. (7) An assessment or determination is to be made by the Commission having regard to such information as is conveniently available to the Commission, even if one or more of the parties to the assessment or determination proceedings does not co-operate or ceases to co-operate. (7A) The Commission may dismiss proceedings before it before or during the conduct of proceedings: (a) if it is satisfied that the proceedings have been abandoned, or (b) if it is satisfied that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, or (c) for any other ground of dismissal specified in the Rules. (8) In proceedings before a court with respect to a claim for work injury damages (other than proceedings under section 235A or 235C or under the Crimes Act 1900 with respect to fraud), evidence of a statement made in proceedings before the Commission is not admissible unless the person who made the statement agrees to the evidence being admitted. 21 On 27 April 2005 the employer filed an Application to Appeal against Decision of Arbitrator. Only the worker was served with a copy of this process and only the worker filed a Notice of Opposition. The insurer appears to have been entirely overlooked at this stage of the proceedings. The insurer, which is a party in this Court, makes no complaint in this regard. 22 On 14 June 2006 the Application was determined on the papers by Acting Deputy President Moore. Leave to appeal was granted as required by s352(1) of the WIM Act. There was a detailed statement of reasons (see Fletcher International Exports Pty Ltd v Barrow [2006] NSWWCCPD 119). Orders were made, confirming some paragraphs of the Arbitrator's decision; revoking some paragraphs with the substitution of alternative orders; and ordering the employer to pay the costs of the appeal. 23 The proceedings in this Court are described by s 353 of the WIM Act as an appeal "in point of law". This Court's powers include the power to remit the matter to the Commission constituted by a Presidential member for determination by the Commission in accordance with any decision of the Court, as well as the power to make such other order in relation to the appeal is the Court thinks fit (WIM Act, s353(2)). 24 It is convenient to address the grounds of appeal in a particular order. Did the Arbitrator have "jurisdiction" to entertain the worker's Application? (Ground 5) 25 The employer contended, as it had before the Presidential member, that the Arbitrator lacked "jurisdiction" to determine the dispute in the absence of evidence that the worker had given prior notice of injury or made a relevant claim for compensation. 26 Legally, the "jurisdictional" point was said to arise from s260 of the WIM Act and to be supported by the reasoning of Presidential members of the Commission in the Kurrajong Holdings t/as The Gardeners Inn v Carrette [2004] NSWWCCPD 8 and Cottons Glass & Aluminium Pty Ltd v Handsaker [2006] NSWCCPD 205. 27 Section 260 relevantly provides that a claim for compensation must be made in accordance with the applicable requirements of the WorkCover Guidelines. Those Guidelines prescribe in considerable detail the information to be included with a worker's initial notification of injury (see the WIM Act, s 266 and Guidelines, Part 1 r5) as well as the claim itself (Guidelines, Part 2 r6). 28 According to the employer, the worker agitated a nature and conditions claim, spanning the period between 1990 and 23 May 2002. Yet there was said to be no indication of any prior report, claim or notice of injury even broadly corresponding to such a claim. 29 The Arbitrator found in para 20 of his Reasons (Red 431) that an Injury Report and Claim Form was submitted to the employer on 4 December 2000 in relation to the injury of the right shoulder that attracted the award of compensation. (Copy of the Report is at Red 260.) Subsequently the employer arranged medical treatment, the worker was referred to specialists to medico-legal purposes, CGU was brought into the picture and various settlement offers were made on behalf of the employer with respect to the worker's claim for compensation for the injury to his right shoulder. 30 The Acting Deputy President who determined the appeal by way of review, addressed the "jurisdictional" issue in paras 25-39 of her Determination (Red 531-2). She held that the Arbitrator was entitled to make the findings in para 20 of his Reasons. The employer's claim that "no notification of injury" was given was found to be clearly without foundation. These are factual findings that are explained in detail in paras 29-34 and 36-38 of the Reasons. 31 Nothing has been put before this Court to suggest that these findings were not open, let alone establish that some "point of law" arises on this matter. 32 Since the jurisdictional argument fails on the facts, it is therefore unnecessary to consider whether non-compliance with any or all of the Guidelines' stipulations about the information to be included in a notification of injury or a claim are truly jurisdictional. Nevertheless, some analysis is apposite by way of guidance to the Commission. 33 If non-compliance with the Guidelines created a jurisdictional impediment, then the entire proceedings before the Commission would be a nullity, even if the dispute were resolved or proceeded to a Determination. This is most unlikely to have been the statutory intent (see generally Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364). 34 The decisions in Kurrajong Holdings and Cottons Glass contain little analysis on the topic and they point to nothing beyond ss260 and 289 of the WIM Act to indicate why non-compliance in any respect might affect the "jurisdiction" of the Commission or bring about what is described in Kurrajong Holdings (at [60]) as orders that are "a nullity". 35 Section 260 of the WIM Act goes no further than stating, relevantly, that "a claim must be made in accordance with the applicable requirements of the WorkCover guidelines" (sub-s(1)). This falls well short of a stipulation that non-compliance deprives the Commission of its statutory jurisdiction and powers otherwise conferred under the legislative scheme. Subsections (5)-(7) are further counter-indicators. They provide: (5) The failure to make a claim as required by this section is not a bar to the recovery of compensation or work injury damages if it is found that the failure was occasioned by ignorance, mistake or other reasonable cause or because of a minor defect in form or style. (6) Except to the extent that the WorkCover Guidelines otherwise provide, an insurer can waive a requirement of those Guidelines with respect to the making of a claim on the insurer. (7) The WorkCover Guidelines can require an insurer to notify a worker of any failure by the worker to comply with a requirement of those Guidelines with respect to the making of a claim, and can provide for the waiver of any such failure by the worker if the insurer fails to give the required notification. 36 Section 74 of the WIM Act requires insurers that dispute liability in respect of a claim or any aspect of a claim to give notice of the dispute to the claimant. The notice must include certain information and also contain the following (sub-s(2)): (b) unless paragraph (c) applies, a statement to the effect that the worker can refer the dispute for determination by the Commission, (c) if the insurer has referred or proposes to refer the dispute for conciliation by the Commission, a statement to that effect specifying the date of referral or proposed referral, … 37 Section 288 of the WIM Act is the primary source of the Commission's authority to determine a dispute. It states: 288 Referral of disputes to Commission (1) Any party to a dispute about a claim may refer the dispute to the Registrar for determination by the Commission. However, if the dispute is about lump sum compensation, only the claimant can refer the dispute. Note . A medical dispute concerning the claim can also be referred for assessment under Part 7 (Medical assessment). (2) The Registrar may not accept a dispute for referral for determination to the Commission if the dispute is a dispute that, under this Part, cannot be referred for determination by the Commission. 38 Section 289 sets out various restrictions as to when a dispute can be referred to the Commission. It provides: 289 Restrictions as to when dispute can be referred to Commission (1) A dispute about a claim for weekly payments cannot be referred for determination by the Commission unless the person on whom the claim is made: (a) disputes liability for the claim (wholly or in part), or (b) fails to determine the claim as and when required by this Act. Note . The determination of a claim requires the commencement of weekly payments of compensation. The failure to commence weekly payments without having disputed liability constitutes a failure to determine the claim. (2) A dispute about a claim for medical expenses compensation cannot be referred for determination by the Commission unless the person on whom the claim is made: (a) disputes liability for the claim (wholly or in part), or (b) fails to determine the claim as and when required by this Act. (3) A dispute about a claim for lump sum compensation cannot be referred for determination by the Commission unless the person on whom the claim is made: (a) wholly disputes liability for the claim, or (b) made an offer of settlement to the claimant pursuant to the determination of the claim as and when required by this Act and 1 month has elapsed since the offer was made, or (c) fails to determine the claim as and when required by this Act. Note . The determination of a claim requires the making of a reasonable offer of settlement (if liability is wholly or partly accepted). Failure to make a reasonable offer of settlement constitutes a failure to determine the claim. (4) A dispute about a claim for compensation under Division 5 (Compensation for property damage) of Part 3 of the 1987 Act cannot be referred for determination by the Commission until: (a) 28 days after the claim for compensation is made, or (b) the person on whom the claim is made disputes liability for the claim (wholly or in part), whichever happens first. (5) The Commission may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination by the Commission. 39 One can conceive how s289 may generate an issue as to the Commission's authority to determine certain disputes unless certain matters have occurred. But nowhere within s289 does one find any clear toehold for an argument that appears to have been accepted within the Commission in decisions such as Kurrajong Holdings and Cottons Glass to the effect that the Commission lacks "jurisdiction" to exercise its statutory powers with respect to a dispute if the disputed claim was not in accordance with the Guidelines. These provisions do not state that any or all failures to comply with the Guidelines might preclude the Commission from embarking on its task, in accordance with the statutory regime. One would think that in most cases, like the present, there would be no question about a dispute having arisen, although there may well be some confusion as to its parameters. The Commission has ample powers to resolve that confusion. 40 Nor can I see statutory support for the proposition argued by the employer, namely that there has to be a close correspondence between the claim previously notified and the one being pressed in the Commission. In any event, the "nature and conditions" claim was found to have been made out on the facts (see below). 41 Nothing in the statute appears to provide support for the proposition that the Guidelines operate to qualify or restrict the statutory scheme or the Commission's duties and powers referable to investigating disputes that arise. 42 The Explanatory Note to the Guidelines states that they set out the procedures for the initial notification of an injury, making provisional liability payments and the making and handling of claims under Pt 3 of the WIM Act. The Guidelines are said to be "primarily intended to assist WorkCover NSW Licensed Insurers". Nowhere is it suggested that the Guidelines touch upon the Commission's jurisdiction or powers as regards a later dispute. 43 In addition, the word "guidelines" is usually encountered with reference to a non-binding indication of policy. The Macquarie Dictionary relevantly defines the term to mean "a statement which defines policy or the area in which a policy is operative". 44 As regards initial notifications, being notifications capable of being made by a worker, employer or their representative, the Guidelines list categories of "minimum identifying information" (Pt 1 r5.1). This information is referred to as "Criteria 1 information". Rule 7 states that if the Criteria 1 information is not provided at the initial notification, then the initial notification is "not complete". Nevertheless the insurer is authorised to start provisional liability payments if the "missing information is not materially necessary" (r7.1). This is not the language one would expect to find if compliance were of the essence of a legally valid claim, as regards a matter touching the Commission's "jurisdiction". Of course, the idea that the Guidelines could dictate the effect of the statute would itself be misconceived. 45 The making and handling of claims is addressed in Pt 2 of the Guidelines. Claims are not necessary for weekly benefits or medical expenses in certain circumstances, but are essential for permanent impairment or work injury damages (Pt 2 r1). Rule 4 stipulates that to make a claim a worker must serve the information listed in Pt 2 r6. Rule 6 refers to "the minimum information required to make a claim" and stipulates lists of information about the worker, the employer, the treating doctor, the worker's employment, the workplace injury and "additional information". For example, the information about the workplace injury includes information as to the part of the body injured and whether that part of the body was "normal" before the workplace injury. 46 It is very difficult to see how strict compliance with these obligations could go to the "jurisdiction" of the Commission to involve itself in a dispute later arising relating to a claim. The closest that Pt 2 of the Guidelines comes to indicating any sanction for non-compliance is r10.1.5 which states: Deficient claim Within 7 days after the insurer received the claim, the insurer has notified the worker in writing that the claim contains an error that is not obvious or typographical; and how to correct that deficiency. This could include • Worker refuses to sign the declaration • No medical certificate received The worker may correct the error at any time. When the error is corrected the claim is then made and the insurer must determine it within 21 days of the correction being notified to the insurer. 47 Once again, this falls well short of purporting to control the jurisdiction of the Commission. 48 This ground of appeal also fails on the facts and is misconceived. Was there evidence that the worker was suffering from a disease or the aggravation of a disease? (Grounds 1-4) 49 The employer contended, as it had before the Presidential member, that it was not open to the Arbitrator to make the determination that he did, because there was no evidence that the worker was suffering from a disease, or the aggravation of a disease. 50 The employer's case in this Court was that the worker's condition was, at most, a "nature and conditions injury" and not a "disease". It was accepted that some nature and conditions injuries (for example skin cancer) are also diseases. But a shoulder injury was said not to be one of them, on the evidence. This issue is particularly relevant to the dispute as between the employer and the insurer because the worker's case (supported by the insurer) is that the employer was solely liable to pay compensation because it was the last (self-) insurer on risk. Section 16(1) of the WC Act provides: If an injury consists in the aggravation, acceleration, exacerbation or deterioration of a disease: (a) the injury shall, for the purposes of this Act, be deemed to have happened: (i) at the time of the worker's death or incapacity, or (ii) if death or incapacity has not resulted from the injury – at the time the worker makes a claim for compensation with respect to the injury, and (b) compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation, acceleration, exacerbation or deterioration. 51 In contrast, at the arbitration hearing the employer had argued that the worker's condition was "at best, a disease process" (Red 515). Nor surprisingly, CGU submits that it would be unjust to permit departure from this stance. In any event, even if departure was permitted, the argument cannot be upheld. 52 In his Determination, the Arbitrator held that the worker received an injury to his right shoulder between 1990 and 23 May 2002 and that the injury arose out of or in the course of his employment as a slaughterman with the employer. The employment was found to be a substantial contributing factor to the injury (Red 435). These, on their face, were findings of fact. 53 The Arbitrator correctly acknowledged that the worker had alleged a nature and conditions injury to his neck and arm (Red 423L). He described the worker's allegation as being that, between 1990 and 23 May 2002, he suffered from a degenerative condition to his right shoulder as a result of over use and repetitive trauma while working for the employer (Red 425M). As indicated below, the Arbitrator held that the worker was suffering from an aggravation of a disease in para 23 of his Reasons. 54 In his Reasons (Red 425-431), the Arbitrator set out extracts from the medical evidence provided on behalf of the worker, including extracts from reports of Dr Rizkallah and Dr Benanzio; reports provided on behalf of the insurer from Dr Porges and Dr Bornstein; reports provided on behalf of the employer (referred to as "the Self-Insurer") including reports of Dr Hughes, Dr Erhlick, Dr Innes-Brown, Dr Robert Smith and Dr Kim Edwards. 55 The Arbitrator's Reasons on the medical issue state: 21. The preliminary issue which has to be determined in this matter is whether the Applicant's medical condition is as the result of an injury which consists of an aggravation, acceleration, exacerbation or deterioration of a disease. 22. The relevant Specialists have diagnosed the worker's condition as follows: (a) Dr Rizkallah Report dated 8 January, [2001] :- "This gentleman has evidence of rotator cuff and bicipital tendinitis as a result of overuse and repetitive trauma at work." (b) Dr Benanzio Report dated 19 May, 2003:- "1. Cervical spine x-rays show a degree of C6/7 degenerative pathology with osteophytes encroaching onto the adjacent foramina. 2. A right shoulder ultrasound shows signs of calcific tendinitis with mild bursal bunching" [c] Dr Porges Report dated 13 August, 2003:- "subacromial bursitis and a degree of rotator cuff tendonitis". [d] Dr Bornstein Report dated 15 July, 2004:- "the diagnosis is calcific tendonitis". [e] Dr Lloyd Hughes Report dated 23 September, 2004:- "mild degenerative rotator cuff lesion of his right shoulder". [f] Professor Frederick Erhlich dated 22 September, 2004: "right shoulder rotator cuff strain". [g] Dr Alan Innes-Brown Report dated 5 September, 2003:- "suffering from capsulitis in the right shoulder which again is a degenerative condition". 23. The various Medical Reports describe the Applicant's Medical Condition as tendonitis or capsulitis in the right shoulder and it is further described as a degenerative condition by the majority of the Medical Practitioners. The following Statement by the treating Orthopaedic Surgeon sums up the condition as follows:- "This gentleman has evidence of rotator cuff and bicipital tendonitis as a result of overuse and repetitive trauma at work." On the basis of this opinion from the treating doctor and the evidence of the Applicant I am satisfied that the Applicant is suffering from an aggravation of a disease being the failure of the right shoulder to cope with the repeated stresses imposed upon it at the Respondent's workplace. I further find that these stresses are a substantial contributing factor to the injury. As a consequence of the stresses the Applicant developed increased pain and tenderness which interfere with his job and activities of daily living. The aggravation of a disease process triggers Section 16 of the 1987 Act and deems the date of injury as the date of the workers incapacity which in this instance is the 23 May, 2002. 56 The Arbitrator then referred to the extensive oral evidence given by the worker. Stating that he was satisfied that the worker was an honest witness who had given truthful evidence, the Arbitrator extracted and accepted the following chronology of events (Red 433): 22 February, 1989 Commenced work with Fletchers International Abattoir Pty Ltd. 1990-1993/4 Developed discomfort in the right shoulder and attended the Abattoir First Aid Section complaining of shoulder pain as a result of operating the brisket bar. 1993/94-2003 Involved as a slaughterman doing the "Y cut". 16 March, 2000 Consulted Dr Rizkallah who advises "Thomas however informs me that the pain is not severe enough for him at this stage to warrant surgical treatment. I therefore recommend continuing the physiotherapy with anti-inflammatory medication". (See Report dated 20 March, 2001.) 8 December, 2000 On the recommendation of Dr Rizkallah attended Orana Radiology for right shoulder Ultrasound. 3 January, 2001 Consulted Dr Rizkallah who recommended Cortisone injection and physiotherapy. 5 January, 2001 Cortisone injection administered by Dr Welshman of Orana Radiology. 2001-2002 Employed as a rover which involved work in every aspect of work as a Slaughterman and including the "Y cut" and "cheeking" duties. 23 May, 2002 Dismissed by Respondent due to failure to perform "cheeking" duties. 3 June, 2002 Consulted Dr Rizkallah who recommended that the Applicant undergo surgery. 8 June, 2002 Consulted Dr Rizkallah who reports "His right shoulder pain has recurred again and he is having difficulty performing activities of daily living and the duties of his job". 57 The critical finding of the nature and conditions injury appears at paras 26-28 as follows: 26. The Applicant's oral evidence together with a perusal of the First Aid Reports and Reports of Dr Rizkallah demonstrate that the right shoulder condition has deteriorated markedly between early 2000 and the date of his termination of employment. The First Aid notes show a history of conservative treatment to the right shoulder up until the year 2000 when the Applicant is referred by his General Practitioner to an Orthopaedic Specialist and that Specialist recommends treatment by way of Cortisone injection and physiotherapy. The Applicant then further complains in 2001 about recurring problems as a result of his work activities at the Respondent's premises and it is at that point of time his treating Specialist recommends an operation to investigate and assist in the resolution of his medical problems. At that stage a stalemate developed as the insurer refuses to pay for the operation and as a consequence the matter was ultimately referred to the Workers Compensation Commission. 27. The Applicant has provided histories to eight Medico/Legal Specialists and his own General Practitioners and treating Specialists. The histories given to each doctor are not consistent and vary greatly as to when the onset of particular symptoms occurred. Each of the Specialists have commented in their Reports that they had considerable difficulty in obtaining a sequential history. I am not greatly assisted by the 8 Medico/Legal Specialists' Reports as they are each based on a different medical history as against the full history that emerged from the oral evidence of the Applicant at the Arbitration. 28. On balance I prefer the evidence of Dr Rizkallah as he has seen the Applicant on 4 occasions over a period of 18 months and as the treating Orthopaedic Surgeon his opinion is to be preferred to the competing medico/legal specialists engaged by the parties. 58 On review, the Acting Deputy President held that the Arbitrator's Determination was open to him on the whole of the evidence before him, in particular, the more than 70 pages of oral evidence by the worker (Red 541P). I agree. 59 The employer submitted in this Court that the Deputy President's decision was wrong in law because: I There was no evidence of a "disease being the failure of the right shoulder to cope with the repeated stresses imposed upon it" from any medical source. Ii The medical evidence summarised by the Arbitrator identified conditions such as "tendonitis", "bursitis", "rotator cuff tendonitis", "calcific tendonitis", "rotator cuff lesion", "right shoulder rotator cuff strain" and "capsulitis". There were references on a couple of occasions to the degenerative nature of the problem. Iii Nowhere is there a description of these conditions or processes as being a "disease". 60 In my view, the Arbitrator's decision was open to him on the evidence that is referred to in his Reasons. See in particular Dr Rizkallah's opinion that there was "evidence of rotator cuff and bicipital tendinitis as a result of overuse and repetitive trauma at work". This is found in his report dated 8 January 2001 that was indubitably relied on before the Arbitrator, not in the report of 20 December 2004 as to which there is some controversy (see below). 61 The failure of an area of the body to cope with repeated stress imposed upon it, leading to pain and loss of function is capable of being found to be a disease process (see generally Armao v Ladue Holdings Pty Ltd (1992) 8 NSWCCR 440; Perry v Tanine Pty Ltd t/as Ermington Hotel (1998) 16 NSWCCR 253). There was in the present case a substantial body of medical evidence as to the nature and origin of the worker's condition which allowed the Commission to conclude that the injury process as disclosed by the evidence was a disease. The evidence was also capable of showing that the disease had been aggravated by the nature and conditions of the work. Did the Arbitrator err in law in having regard to material that was "not in evidence"? (Grounds 8-10) 62 This is the manner in which this complaint was formulated in this Court (Notice of Appeal, Ground 8) and previously in the Application to Appeal Against the Arbitrator's Decision (Ground (d)). 63 The complaint focussed upon four documents: (a) Report of Dr Rizkallah dated 20 December 2004; (b) Injury report by the worker dated 4 December 2000; (c) First-Aid notes for various dates between 17 October 2000 and 10 January 2001; and (d) Form letter from the employer to Dr Rizkallah dated 7 June 2002. These are among the documents that the Arbitrator records (in para 11 of his Reasons) as being "in evidence before the Commission and taken into account in making [the] determination" . 64 As indicated, s354(2) of the WIM Act provides: The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits. 65 It became common ground before us that the four documents had been served on all parties and also formed part of the bundle of documents "on file" with the Commission by the time of the arbitration hearing. Indeed, they had been specifically referred to as "admitted" in the teleconference with the Arbitrator that preceded the hearing. 66 The nub of the employer's complaint, as ultimately refined, was that the hearing before the Arbitrator had not involved a sufficient signalling of intention to rely upon the offending material so as to engage the principles of procedural fairness. The employer further submitted if need be (and I think it would be), that the problem was not cured when the matter went before the Presidential member by way of "review". 67 I would reject these submissions. 68 The legislative scheme contemplated that proceedings in the Commission might take place on the papers (see WIM Act, s354(6)). Consistent with this, the Commission's practice is to require parties to identify "supporting documents and information" in their respective Application and Reply. In the present case the parties attached hefty bundles of documents to the Application filed by the worker and the Replies filed by the employer and the insurer. 69 The lodgement of material prior to an arbitration commencing was mandated by Rule 38 of the Workers Compensation Rules 2003 (now repealed). That Rule also contemplates that the Commission might allow the late introduction of "evidence". 70 Documents (b) and (c) were part of the Application to Resolve a Dispute filed by the worker at the outset. 71 Applications to admit "late documents" were addressed at the teleconferences that preceded the arbitration (see Red 416, 419). There was an application to adjourn a teleconference listed for 30 November 2004 because the worker's solicitor had yet to receive the report of Dr Rizkallah requested in response to "the late report of Colin Bass" (Red 421), this being a vocational assessment report dated 5 September 2004 that was part of the materials filed and relied upon by the insurer (Red 425). Dr Rizkallah's report dated 20 December 2004 (document (a) above) was served on the employer's solicitor on 21 January 2005 well over a month before the arbitration hearing. At a teleconference held on 2 February 2005 the report was one of several recorded by the arbitrator as "admitted without objection". (This was not a ruling as to relevance, but a response to the formal Application to Admit Late Documents which was the process whereby disputes about the documentary material before the Arbitrator at the hearing was resolved.) 72 At the commencement of the arbitration hearing the respective legal representatives listed the medical reports that they relied on (Red 449-451). 73 Mr Perry, for the worker, listed various reports of Dr Rizkallah but did not mention the report dated 20 December 2000. It is not clear whether this was an oversight, given that this report had only lately been added to those on the Commission file. It had been served in either late January or early February 2005. The report is not in evidence before us. However, we were informed without objection that it dealt with historical matters and a proposed operative procedure (CA Tr 15/06/07 p22). An extract from the report appears in the Arbitrator's Determination (Red 426). It includes a statement that the doctor considered the worker's injuries to be directly related to his employment as a slaughter-man at Fletcher International Exports Pty Ltd. It was, however, an opinion of Dr Rizkallah in a 2002 report (Red 18) that is referred to in the Arbitrator's summary of the medical evidence grounding his findings about injury consisting of aggravation etc of a disease (Red 431). 74 The worker was called to give oral evidence. His evidence included reference to treatment by Dr Rizkallah and he was questioned about the injury report dated 4 December 2004 (document (b)). 75 Submissions then commenced (Red 505). The worker's barrister immediately indicated that he wished to add to the documents that had been tendered on behalf of the worker some "documents produced under the directions to produce". The documents were admitted over objection. That objection was a complaint about relevance, not based on surprise or the inappropriateness of the Arbitrator referring to these documents. They appear to have included some otherwise unidentified "supplementary reports of Dr Rizkallah" (Red 506H). 76 The form letter (document (d)) was also referred to during submissions at the arbitration hearing. An objection based on relevance was rejected (Red 506). 77 It can therefore be seen that the employer's suggestion that there was want of procedural fairness at the arbitration is entirely without substance. The relevant documents were before the Arbitrator to the knowledge of all parties. The parties had and exercised the opportunity of questioning the worker on them and making submissions about them. 78 In Aluminium Louvres Bryson JA made a statement which I would respectfully endorse. He said (at [25]): The requirements of the rules for information to be lodged in advance and for statements revealing the cases of parties to be made in advance, taken with the width of the sources of information on which the Commission is authorised to act and the ways in which it is authorised to proceed, mean that assumptions upon which common law trials are conducted should not be readily carried over when testing contentions that a hearing before an Arbitrator was not conducted in a fair way. The overall and continuing duty under s.355 to use best endeavours to bring the parties to settlement acceptable to all of them must have large influence on the manner in which proceedings are conducted. The environment of contestation and the confrontational methods of the common-law trial would not usually be appropriate; there may be issues of kinds which it is appropriate to deal with in that style, and much is left to the discretion of the Arbitrator. The Arbitrator is in a good position to decide on and to impose appropriate controls on the adduction of evidence, by cross-examination or otherwise. The Arbitrator will usually be in a position to perceive whether a wish to pursue an issue has a basis, whether it is a sound basis, whether some issue or line of questions is merely exploratory, or for that matter whether questions are merely the product of inventiveness. 79 When the employer exercised its right to seek a review of the Arbitrator's Determination it included a ground of appeal that: The Arbitrator has erred in considering as evidence that which was not evident (sic). 80 The Acting Deputy President was in my view entirely justified in rejecting this challenge on the following grounds: 46. Fletcher submits that: "The Arbitrator has erred in considering as evidence that which was not evident". No further particulars are provided. I assume that this is a reference to the material referred to earlier in the "jurisdiction" issue, but it is by no means clear. 47. As I have said, this material was admitted into evidence by the Arbitrator without objection. The fact that Fletcher apparently failed to notice it cannot be ascribed to any error on the part of the Arbitrator. 48. Without further particulars as to the nature of this 'non-evident' material, I am not satisfied that there has been any error by the Arbitrator on this issue. 81 The employer has sought to address the materiality of documents (a) to (d) in its written and oral submissions in this Court. It has focussed on documents (a) and (b). Document (a) (Dr Rizkallah's report dated 20 December 2004) is obviously material, but equally clearly, it was before the Arbitrator ("in evidence" if you like) to the knowledge of all concerned at all material times. 82 Document (b) (the Injury Report dated 4 December 2000) is said to be relevant to the "jurisdictional" issue already addressed (see Appellant's Supplementary Submissions para 13). As indicated, the "jurisdictional" point has no substance. In any event, the Report was so clearly "before" the Arbitrator that it was put to the worker in the course of his oral testimony. 83 These grounds fail. Miscarriage and/or denial of procedural fairness in the decision of the Acting Deputy President to "deal with the matter on the papers" (Grounds 6 and 7) 84 When, on 27 April 2005, the employer filed an Application to Appeal Against Decision of Arbitrator it set out grounds of appeal (Red 441-3) foreshadowing the possibility of amending those grounds "at the Hearing before a Presidential Member following receipt of Transcript of Proceedings and following the provision of documents admitted by the Arbitrator but not provided to the Respondent". 85 The employer indicated that it did not seek leave to rely on any fresh or additional evidence. It also indicated its "view" that the matter could not be dealt with on the papers (s354(6)), but rather should be dealt with by appointing of a hearing before a Presidential member. Reasons were advanced (Red 441). 86 The employer's solicitors wrote to the Commission on 10 June 2005 as follows: We refer to the Appeal filed in this matter and we note from the Notice of Opposition filed on behalf of the Respondent to the Appeal that the Appeal is not actually opposed at all (presumably in view of the very clear authority of the Commission as set out in Kurrajong Holdings v Carrett – PD8 of 2004). In these circumstances we await confirmation from you of the Appeal having been allowed and of an award having been entered in favour of the Respondent employer in its interests as a self insurer at your earliest convenience. 87 In fact, the worker filed a Notice of Opposition that same day (Red 445). The Notice indicated that he did not seek any opportunity to file submissions or supplementary evidence. He made no submission about whether the appeal should be dealt with on the papers. 88 A further letter from the employer's solicitors on 22 July 2005 betrayed further signs of over-confidence on the employer's part. It asserted that the absence of certain material on the Commission file: …simply confirms the Grounds of Appeal and as there are no submissions in opposition to the Appeal it should not be necessary to inspect the file subject to the Appeal being allowed. It will only be necessary for us to inspect the file if the Appeal is not allowed on the papers in which case the appointment of a hearing date will be required at which time we will arrange such an inspection. 89 The Acting Deputy President explained her reasons for proceeding without a formal hearing in the following terms: 17. Fletcher submits that the matter is not capable of being dealt with 'on the papers' "... Firstly, because Transcript of the proceedings have [sic] not yet been provided ... and secondly, because the matter and issues raised by the Appeal are complex and will require that the Appellant be given the opportunity of reviewing and supplementing its submissions at a Hearing." 18. Mr Barrow makes no submission on this point. 19. The appeal file contains a 77 page transcript of the proceedings heard on 11 March 2005. A copy was sent to Fletcher under cover of a letter from the Commission dated 23 June 2005. Notwithstanding Fletcher's submission that it: "... is not yet in a position to finalise the Grounds of Appeal and submissions but will do so at the Hearing before a Presidential Member following receipt of Transcript of Proceedings and following the provision of documents admitted by the Arbitrator but not provided to the Respondent," no further submissions have been made. 20. The 'request' to the Commission for the provision of certain documents apparently in the Arbitrator's file post-dated the lodging of the appeal, and does not appear to have been pursued by Fletcher as set out in its letter to the Commission of 5 July 2005 referred to in paragraph 12 above. 21. However, the material requested, to which I will refer in more detail shortly, was contained in documents produced under direction and admitted by the Arbitrator into evidence "without objection" at the Teleconference on 2 February 2005 such that I cannot see the basis for Fletcher's assertion that this material was never served. 22. 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." 23. Having carefully read the transcript, the extensive material before the Arbitrator and the submissions on appeal, I am satisfied that I have sufficient information within the meaning of section 354(6) and in accordance with Practice Direction No. 1 to proceed 'on the papers' and that this is the appropriate course in the circumstances. 90 Sections 354 (1), (6) and (7) of the WIM Act provide: (1) 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. … (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. (7) An assessment or determination is to be made by the Commission having regard to such information as is conveniently available to the Commission, even if one or more of the parties to the assessment or determination proceedings does not co-operate or ceases to co-operate. 91 The Commission is not a court and is not expected to function as a court (see Alyuminium Louvres at [25] set out above). 92 The arguments that the Deputy President's discretion miscarried extended in places to an allegation that procedural fairness was denied in the process. 93 The employer submits that the Presidential member failed to give any or any adequate weight to the nature and complexity of the case. Had she done so, she would have opted for oral argument with the advantage of questioning and interaction which it offers. 94 This submission amounts to no more than complaint about the outcome of the exercise of the discretion. Under the section, the power is enlivened if the Commission "is satisfied that sufficient information has been supplied". The Presidential member addressed this matter and declared that she was thus satisfied. This conclusion was well open and it has not been shown to be erroneous in fact. 95 Next, the employer says that it flagged its intention to make further submissions orally at the hearing it had sought. It complains that the Presidential member did not notify the employer that she was contemplating dealing with the matter "on the papers", thereby arming the employer with the opportunity of putting in further submissions in writing. 96 However, the employer had no entitlement to or legitimate expectation of such notification. It knew that it was at least "on the cards" that the Commission might proceed on the papers. The employer sought to persuade the Commission otherwise but, on the evidence before us, it had no entitlement to presume a favourable response to the views it somewhat presumptously expressed through its solicitors. 97 The employer's submissions hint at the proposition that it was in some way misled into thinking that a hearing would be appointed. There is no evidence to suggest this. It seems to have done nothing to clarify the position. Its written submissions were dated 27 April 2005 and accompanied the Application. The transcript of the arbitration proceedings was sent to the employer by the Commission on 23 June 2005 (Red 529).. The Determination of the Acting Deputy President was issued on 14 June 2006. 98 The submissions that the Presidential member was in some way obliged to "seek clarification of the way in which the Appellant contended its submissions were relevant" (Ground 6(c)) seeks to impose a duty on which the statute is silent. Procedural fairness does not require this of a decision-maker: a reasonable opportunity to advance arguments is all that is required in a context where the issues are known or (as here) formulated by the party in question. 99 The detailed reasons provided in the Determination show that the presidential member understood the employer's submissions, addressing them in turn. 100 Next, it is submitted that the Presidential member had no proper regard to the fact that the worker had raised no objection to the employer's submission that an oral hearing should take place. Once again this seeks to read conditions into the statute that its language does not bear. The worker's failure to resist an oral hearing did not have the consequence that it became mandatory. Indeed, the paucity of the material filed by the worker would have been a factor capable of supporting the decision of the Commission to proceed as it did. The Commission's Practice Direction No 6 indicated an expectation that most applications for leave to appeal a decision of an Arbitrator would be determined on the papers unless the Presidential member otherwise directed. 101 Next it is submitted that the Presidential member denied procedural fairness when she failed to notify the parties that she had gone beyond the record of the arbitration in that she inspected the Arbitrator's notes of a teleconference of 2 February 2005 and proposed to have regard to them. 102 These notes would have been part of the Commission's records concerning the proceedings before it. The matters referred to in para 7 of the Determination of the Presidential member in relation to the teleconference of 2 February 2005 were and remain uncontroversial. They do no more than flag the issues addressed later in the arbitration. 103 In fact, it would have been remarkable if the Presidential member had failed to examine the Commission's whole file in the exercise of her "review" powers. 104 This ground also fails. Disposition 105 The appeal therefore fails and should be dismissed. Costs 106 An issue has arisen as regards the costs relating to a hearing in this Court on 9 March 2007. 107 This appeal was originally listed before a differently constituted bench for hearing on 9 March 2007. The legal representatives of the parties were generally ready to proceed, but there was a live dispute as to what had happened at the Arbitrator's telephone conference of 2 February 2005, particularly referable to the question whether certain reports were "admitted" into the Commission's file. This dispute had spilled over into disagreement about the completeness of the Red Book. 108 Senior counsel for the employer sought leave to file in court an affidavit upon which he intended to rely regarding that dispute. It was an affidavit of his instructing solicitor Mr Macken sworn 8 March 2007, ie the day before the hearing. 109 This led to the hearing being vacated with a series of consequential orders (CA Tr 09/03/07 p25). They included an order that the employer pay the worker's costs thrown away by the adjournment and an order that costs as between the employer and the insurer be reserved. 110 Subsequent to 9 March 2007, and in accordance with the directions then given, further affidavits were prepared and filed, essentially as to the contents of the Commission's record. There remained a live dispute on these matters until part-way through the hearing before the Court as presently constituted when senior counsel for the appellant indicated that he no longer pressed so much of Grounds 8 – 10 as dealt with this matter (see para 65 above). Argument on those grounds then shifted to address the question whether the parties had flagged their intention to rely upon the additional documents at the arbitration hearing. 111 In light of this the worker now seeks his costs incurred since 9 March 2007 for work done in relation to Grounds 8 - 10 and he seeks them on an indemnity basis. The insurer seeks a similar order, as well as an order for the costs thrown away by the adjournment of the hearing on 9 March 2007. 112 Since each respondent is entitled to an order for costs in his and its favour consequent on the dismissal of the appeal, the only live issue relates to the claim for costs to be assessed on the indemnity basis. 113 I consider that the employer should bear responsibility for the aborted hearing on 9 March 2007. The late filing of Mr Macken's affidavit made it inevitable that the hearing would have to be vacated; and most, if not all, of the affidavits prepared in response relate to the issue that was ultimately abandoned. These matters should have been brought to a head well before the original hearing date. The employer was the moving party in the appeal and its solicitor should have moved more promptly given that the problems were flagged in the appellant's own submissions of 3 October 2006. 114 I do not accept the employer's submission that the real cause of the hearing being vacated was the unwillingness of the respondents to accept the employer's proposals for dealing "on the run" (my words) with the issues raised by senior counsel for the appellant at the commencement of the hearing on 9 March 2007. 115 Nevertheless, I would not order costs to be assessed on an indemnity basis. There remains a live issue with regard to the procedural fairness arm of Grounds 8 – 10. And I can see no reason why costs on the ordinary basis will not fully and adequately compensate the respondents with reference to the work done on their behalf, responsive to the matters raised by Mr King SC on 9 March 2007 and thrown up by the affidavit of Mr Macken sworn the previous day. 116 For the avoidance of doubt I would add that I consider the reasonable costs incurred by the respondents in preparing the written submissions on costs should be regarded as falling within the respondents' costs of the appeal. Those submissions were prepared while this judgment stood reserved and they arise out of matters left outstanding in consequence of the directions given at the conclusion of the vacated hearing. 117 For the same reasons I cannot accept the employer's submission that the insurer pay the costs of the vacated hearing. 118 The appeal should be dismissed with costs. 119 SANTOW JA: I agree with Mason P. 120 TOBIAS JA: I agree with Mason P. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.