Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Ausgrid (formerly Energy Australia Pty Ltd) v Butler [2012] NSWCA 303 Hearing dates: 3 September 2012 Decision date: 03 September 2012 Before: Bathurst CJ at [27] Allsop P at [1] Decision: 1. Application for leave to appeal dismissed. 2. Applicant pay the respondent's costs on the indemnity basis. [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: LEAVE TO APPEAL - workers compensation - interaction of ss 79 and 289A of Workplace Injury Management and Workers Compensation Act 1998 (NSW) - operation of transitional provisions of Workers Compensation Act 1987 (NSW) - no procedural unfairness at Workers Compensation Commission - poor prospects of success in appeal - leave refused Legislation Cited: Civil Procedure Act 2005 (NSW) Supreme Court Act 1970 (NSW) Workers Compensation Act 1987 (NSW) Workplace Injury Management and Workers Compensation Act 1998 (NSW) Cases Cited: Sapina v Coles Myer Ltd [2009] NSWCA 71 Category: Principal judgment Parties: Ausgrid (formerly Energy Australia Pty Ltd) (Applicant) Brian Frederick Oxford Butler (Respondent) Representation: Counsel: Mr P Stockley (Applicant) Mr L King SC, Ms L Goodman (Respondent) Solicitors: Leigh Virtue & Associates (Applicant) White Barnes (Respondent) File Number(s): 2012/134324 Decision under appeal Citation: [2012] NSWWCCPD 19 Date of Decision: 2012-03-30 00:00:00 Before: O'Grady DP File Number(s): A2-2838/09 Judgment 1ALLSOP P: This is an application for leave to appeal against a decision of a Deputy President of the Workers Compensation Commission in point of law under s 353 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the "WIM Act"). Leave is required because the amount of compensation in dispute is under $20,000: see s 353(4)(c). 2Mr Butler worked for the applicant for 38 years, retiring in 2004. On 30 June 1995, a formal award pursuant to consent orders was made in the former Workers Compensation Court including an award in Mr Butler's favour for $14,478.85 in respect of 15% permanent loss of use of his left leg at or above the knee under s 66 of the Workers Compensation Act 1987 (NSW),(the "1987 Act") and $10,000 under s 67 of the 1987 Act. 3The injuries to the leg particularised were said to have occurred in 1981 and 1992. There was another injury in 1997 affecting the wrist but that plays no part in these proceedings. In 2008, four years after ceasing employment, Mr Butler made a claim for further loss of use of his left leg. The claim was accompanied by a medical report assessing a 35% impairment to the left leg at or above the knee. The applicant rejected the claim but did not serve Mr Butler with a notice under s 74 of the WIM Act. That section provides as follows in subsections (1) and (2): "(1) If an insurer disputes liability in respect of a claim or any aspect of a claim, the insurer must give notice of the dispute to the claimant. (2) The notice must contain the following: (a) a statement of the reason the insurer disputes liability and of the issues relevant to the decision, (a1) a statement to the effect that the worker can request a review of the claim by the insurer, (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 determination by the Commission, a statement to that effect specifying the date of referral or proposed referral, (c1) a statement to the effect that the matters that may be referred to the Commission are limited to matters notified in the notice, or in a notice after a further review or in correspondence prior to any such referral concerning an offer of settlement or in a request for a further review, (d) a statement to the effect that the worker can also seek advice or assistance from the worker's trade union organisation or from a lawyer, (e) such other information as the regulations may prescribe or, subject to the regulations, as the Authority may from time to time approve and notify to insurers and self-insurers." 4Then began a disputation history that the Deputy President and the arbitrator described in terms which I will not repeat. It is relevant to outline that litigation history briefly. It is to be recalled that from the parameters of the further claim it could not have been seen to be worth any more than about $20,000 to $30,000, at the most. A teleconference with an arbitrator was held on 21 May 2009, which failed to resolve the dispute. Some agreement was reached at that meeting about the terms of the claim and the application. The matter was referred to an approved medical specialist, Dr Bye, on 15 June 2009. The date of injury was said to be 30 June 1995 as a deemed date from the earlier award. Dr Bye issued a medical assessment certificate on 16 July 2009 certifying 30% permanent loss of efficient use of the left leg. 5The applicant appealed to a medical assessment panel under s 327 of the WIM Act. In October 2009 the panel made certain corrections but in substance found no error in Dr Bye's conclusions. The applicant sought judicial review in the Supreme Court against the medical assessment panel's decision under s 69 of the Supreme Court Act 1970 (NSW). This application was successful. Acting Justice Barr set aside the decision because of failure by the panel to afford procedural fairness to the applicant. 6Meanwhile, an arbitrator had continued to deal with the matter on the basis of the validity of the panel's certificate. After the Supreme Court decision, the arbitrator's decision was set aside. That decision was for almost $14,500 for a sum under s 66 of the 1987 Act and $16,360 for a sum under s 67. 7Another medical assessment panel was constituted in November 2010. It confirmed Dr Bye's view, but it too denied the applicant an opportunity to put submissions. When confronted with Barr AJ's decision, the panel rescinded its decision. A third medical assessment panel was constituted and an oral hearing was conducted in March 2011. In April 2011 this panel confirmed Dr Bye's certificate. The matter then came before the arbitrator from whom the appeal to the Deputy President was taken. After a hearing the arbitrator made orders recorded in an amended certificate as follows: "The Commission determines: 1. The respondent will, pursuant to section 16 of the Workers Compensation Act 1926, and by consent, pay the applicant $2,065 in respect of 10 per cent further loss of use of the lower part of the right arm that results from injury to that body part on 26 July 1977. 2. The respondent shall, pursuant to section 66 of the Workers Compensation Act 1987 (the 1987 Act), pay a further $14,478.75 to the applicant in respect of 15 per cent additional loss of use of the left leg at or above the knee that results from an injury the applicant is deemed to have sustained to that body part on 30 June 1995. 3. The respondent shall, pursuant to section 67 of the Workers Compensation Act 1987, pay a further $3,180 to the applicant in respect of additional pain and suffering that results from loss of use of the left leg at or above the knee. 4. The respondent shall pay the applicant's costs as agreed or assessed." 8One of the issues before the arbitrator was the operation of the transitional provisions in Schedule 6 of the 1987 Act. Mr Butler argued before the arbitrator that the applicant could not raise the transitional provisions in the context that there was a deemed injury on 30 June 1995. The arbitrator set out the issues before him in paras [87] through [90] of his reasons: "[87] At the hearing on 6 June 2011, I ascertained that Mr Macken sought to ventilate the following issues on behalf of the respondent: (a) Are subclauses 2 and 2(a) of clause 6 of Part 18C of Schedule 6 of the 1987 Act (that Schedule being referred to below as the Transitional Provisions) applicable to the determination of any compensation payable to the applicant pursuant to Section 66 of the 1987 Act in relation to an injury that is deemed to have been sustained on 30 June 1995? (b) Is 30 June 1995, in the circumstances of this case, a deemed date of injury, or the correct deemed date of injury, for the purposes of determination of any entitlement to compensation pursuant to sections 66 and 67 of the 1987 Act? (c) If 30 June 1995 is not a deemed date of injury, or the correct date of injury, what is the effect thereof? (d) If the said subclauses of the Transitional Provisions are applicable, what is the applicant's entitlement, if any, to compensation pursuant to Sections 66 and 67 of the 1987 Act, having regard to the apportionment that is to be made in accordance with those subsections? [88] Ms Goodman, for the applicant, submitted that the respondent was precluded from raising the foregoing issues. The following issues, requiring determination by me, and affecting the scope of the issues that the respondent may raise, emerged from Ms Goodman's objection: (e) Is the respondent estopped from: (i) Raising the application of the Transitional Provisions as being relevant to the applicant's entitlement; and (ii) Raising any issue as to the date of injury. [89] The issues referred to in paragraph 87 above were not raised previously pursuant to section 74 of the 1998 Act. This raises whether the respondent therefore requires leave pursuant to section 289A of the 1998 Act to raise those issues, and if so, whether leave should be granted. That relevant issue for consideration would therefore be: (f) Does the respondent require leave pursuant to section 289A of the 1998 Act to raise the issues referred to at paragraph 66 above and, if so, should leave be granted. [90] I consider the logical management of the issues noted above to be as follows: (a) Does the respondent require leave pursuant to section 289A of the 1998 Act to raise the issues referred to in paragraph 66 above and, if so, should leave be granted? (b) Is the respondent estopped from raising any issue as to the date of injury? (c) Is 30 June 1995, in the circumstances of this case, a deemed date of injury, or the correct deemed date of injury, for the purposes of determination of any entitlement to compensation pursuant to sections 66 and 67 of the 1987 Act? (d) If 30 June 1995 is not a deemed date of injury or the correct date of injury what is the effect thereof? (e) Is the respondent estopped from raising application of the Transitional Provisions as being relevant to the applicant's entitlement to compensation pursuant to section 66 and 67 of the 1987 Act? (f) Are subclauses 2 and 2(a) of clause 6 of Part 18C of the Transitional Provisions applicable to the determination of any compensation payable to the applicant pursuant to Section 66 of the 1987 Act in relation to an injury that is deemed to have been sustained on 30 June 1995? (g) If the said subclauses of the Transitional Provisions are applicable, what is the applicant's entitlement, if any, to compensation pursuant to Sections 66 and 67 of the 1987 Act, having regard to the apportionment that is to be made in accordance with those subsections? (h) If the said subclauses of the Transitional Provisions are not applicable, what is the applicant's entitlement, if any, to compensation pursuant to Sections 66 and 67 of the 1987 Act?" 9In that formulation of the issues the questions of the date of injury and the operation of the transitional provisions can be seen to be identified. The arbitrator himself identified at [89] the question of the operation of ss 74 and 289A of the WIM Act. I should add at this point that the provisions of s 289A of the WIM Act require leave to proceed but leave is only to be given in the interests of justice for matters not raised in the notice provided by s 74. The arbitrator then proceeded to give extensive reasons in relation to ss 74 and 289A at [111] to [182]. It was submitted that this was only in relation to the question of the date of injury. Nevertheless, the arbitrator had clearly identified the fact that ss 74 and 289A of the WIM Act were related to all the issues now sought to be raised before him and set out by Mr Macken on behalf of the employer and described in s 87 of the arbitrator's reasons. 10The applicant appealed. The grounds of appeal were as follows: "a. Error by the Arbitrator in his consideration and interpretation of Clause 6 of Part 6 of the transitional provisions of the WCA. b. Error by the Arbitrator in his determination of the deemed date of injury of 30 June 1995 contrary to the provisions of Section 15 and 16 of the WCA. c. Error by the Arbitrator in the exercise of the discretion conferred under Section 289A(4) of the WIM and in his consideration of the requirements of such leave in respect of issues to be determined." It will be seen from the above that directly and squarely raised was the consideration of the discretion conferred under 289A(4) of the WIM Act. 11The Deputy President in a detailed and careful set of reasons dealt with the evidence before him, dealt with the submissions before the arbitrator, dealt with the arbitrator's decision and considered the submissions of the parties. The Deputy President noted at [79] that the construction of the transitional provisions was only discussed by the arbitrator after he concluded that no leave should be given to raise injury under s 289A and under the doctrine of estoppel. There was a clear relationship between the questions of the transitional provision, injury and liability. 12Dealing with the issue concerning ss 74 and 289A, the Deputy President failed to find any error in the arbitrator. He said the following at [78]: "The appellant's reliance upon the application of the transitional provisions, as may readily be seen from an examination of submissions put before the Arbitrator, is pressed with the object of eliminating, or at least minimising, its liability to pay any further compensation to Mr Butler. On any view of the circumstances it is clear that reliance upon the Schedule constitutes a dispute as to liability. Such is, plainly, a legal issue." 13He went on at [80]-[82] to say the following: "[80] The appellant has not (as is clear from the submissions on this appeal) made an application pursuant to s 289A(4) that the Commission hear or otherwise deal with the matter of dispute concerning application of the Schedule in determining the quantum of any entitlement. [81] In those circumstances such dispute could not be referred for determination. The restriction on referral of disputes as provided by s 289A, on the present facts, prevented that issue being determined by the Arbitrator. [82] The Arbitrator has not, in my view, erred in determining that ss 74 and 289A were relevant to a determination as to those matters which may be raised by a the appellant in defence of the claim. Proper application of those sections to the facts has the consequence that the suggested dispute concerning the transitional provisions could not be referred for determination by the Commission." 14In returning to what the Deputy President called Ground A, being the transitional provisions issue, he said the following at [83]-[84]: "[83] It follows that the Arbitrator has erred in purporting to make the determination (at [233] of Reasons) concerning the transitional provisions. The appellant's failure to give notice of dispute (s 74) and the consequences of the application of s 289A (in the absence of any application made as permitted by s 289A(4)) gives rise, in my opinion, to a procedural bar preventing determination of the question. [84] The appellant's complaint that the Arbitrator has failed to consider the decision of Newman fails to acknowledge that that decision was delivered at a time before the passage of s 289A of the 1998 Act. I acknowledge that the decision in Newman and those other authorities relied upon by the appellant are relevant to a consideration of the proper construction and application of the transitional provisions. However, that question, as earlier noted, was not properly before the Arbitrator and that question may not be determined on this appeal. Ground A relied upon by the appellant must fail." 15It should be noted that [83] was the finding of error in the arbitrator in a manner that had been unfavourable to the applicant and was now favourable to the applicant. Paragraph [84], however, identifies the Deputy President's view that as a matter of substance the transitional provision issue should not be dealt with as it was precluded by the conclusion as to ss 74 and 289A. 16The Deputy President's view that ss 74 and 289A prevented a dispute concerning the transitional provisions and injury required leave, can be seen on one view to be expressed as part of the resolution of the issues tendered by the applicant on the appeal. It is said by the applicant, however, that the only issue tendered on appeal concerning ss 74 and 289A was the question of injury and not the question of the operation of the transitional provisions. Reading the reasons of the arbitrator and the reasons of the Deputy President, I have some difficulty with that. Nevertheless, were it accurate there may be a basis to consider the question of whether or not further submissions should have been called for. 17That then throws to the centre of the analysis the substantive matter upon which any appeal would be fought and that is whether or not the submission as to the operation of Schedule 6 to the 1987 Act, Pt 6, cl 6, can be seen to be covered by s 74 of the WIM Act. Counsel appearing for the applicant accepted, as he must have, that the question as to whether leave should be granted on this hypothesis depended in significant part upon whether he could show it was strongly arguable that the operation of the transitional provision was not covered by the terms of s 74. In my respectful view, not only is it not strongly arguable, it is barely arguable. 18Section 74 refers to "an insurer disput[ing] liability in respect of a claim or any aspect of a claim". The operation of Pt 6 of Schedule 6 was for the purpose of supporting an argument that no compensation was payable in a certain respect. That, in my view, was within s 74, although it is unnecessary to draw a final conclusion about that for the purpose of any precedent. In my view, the prospects of success of any such appeal are low at best. Therefore, even if contrary to my preferred view there was any possible denial of procedural fairness, the prospect of success on appeal does not warrant leave to appeal. 19That substantially deals with the question of procedural fairness. The submissions also raised the question whether the nature of the appeal to the Deputy President was such as to be limited in jurisdictional terms by reference to submissions or particulars put by the parties to the appeal. In my view there is no substance in that argument. The nature of the appeal to the Deputy President has recently been changed. Decisions of this Court up to and including cases such as Sapina v Coles Myer Ltd [2009] NSWCA 71 made clear that the responsibility of the Deputy President was to undertake a personal review of the matter and reach his or her own view. The word review has been removed and s 352(5) makes clear that: "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." 20I do not propose to give this the appellation of appeal by way of rehearing. The statutory command is there to be read. It does not, however, involve a limitation that it is not possible to find error unless it is identified by submissions of the parties or the appeal process itself. Questions of natural justice of course would arise, however, there is no foundation, in my view, to that argument. 21In my view there is no question of public importance either about the operation of ss 74 and 289A or about the operation of the transitional provisions. Nor in my view has there been any injustice identified or any real prospects of success on any appeal, should I be wrong in my primary view about there not being any denial of procedural fairness. In my view leave to appeal should be refused with costs. 22BATHURST CJ: I agree. I would only add these matters. First, the written submissions of the applicant fail to identify any reason why the invocation of subclause 2 of cl 6 of the schedule was not a dispute as to liability within the meaning of s 74 of the WIM Act and counsel for the applicant in oral submissions was unable to point to any reason why the contrary proposition was correct. In those circumstances it is difficult to see how it could possibly be said that the proposed appeal, if leave was granted, was strongly arguable. 23Second it should be noted that this is a matter involving, as the President said, something less than $30,000. The estimate given at the oral hearing was $20,000. It has occupied the time of three medical panels, two arbitrators, two presidential members and one Supreme Court judge as well as this, what I would describe as misconceived application, today. There is, in my view, no justification for any litigant, whether insurance company or otherwise, conducting proceedings in this fashion. In those circumstances I would agree with the President but would invite the counsel for the respondent to make any special application for costs that its client thinks fit. 24KING: Your Honour in those circumstances I'd ask that the Court order that the costs of these proceedings be paid on an indemnity basis. 25BATHURST CJ: Yes, Mr Stockley, what do you say to that? 26STOCKLEY: I have no submission to make, your Honour. 27BATHURST CJ: Counsel for the respondent has sought an order that costs of this matter be paid on an indemnity basis. The power of the Court to make such an order can be found in s 98 of the Civil Procedure Act. In the circumstances of this case, where the application for leave seems to me without merit and having regard to the past history of the proceedings oppressive to the respondent, in my opinion such an order should be made. I note that counsel for the applicant has said nothing in opposition to such an order. Accordingly in my view the order should be, application for leave to appeal dismissed, the applicant pay the respondent's costs on the indemnity basis. Accordingly that is the order of the Court. ********** 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. Decision last updated: 20 September 2012