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Guidelines indeterminate 19 WCMS 1

Fletcher Int'l Exports [Self] v Barrow & Anor [CGU] [2007] NSWCA 244, Mason P, Santow & Tobias JJA agreeing. 13.09.07.

Arbitrator Mr Messenger in March 2005 determined for a slaughterman who had claimed nature and conditions between 1990 and 2002 had injured his right shoulder.

The employer had insurance with CGU until August 1999, when it insured itself, and the award was visited against the latter interest by finding of disease.

In June 2006 on appeal at [06] PD 119, Moore ADP generally upheld the determination and ordered the self insurer to pay appeal costs.

The employer brought the further appeal, contending errors of law: (i) lack of notice and claim voided the Commission's jurisdiction; (ii) because the shoulder claim was pleaded as nature and conditions, disease finding unavailable; (iii) recourse to documents which had not been tendered; and (iv) the Commission presidential appeal denied procedural fairness.

Mason P delivered the leading judgment, with which Santow and Tobias JJA shortly concurred.

On the notice and claim contention, Mason P noted the appellant's reliance on Kurrajong Holdings t/as The Gardeners Inn v Carrette [2004] NSWWCCPD 8 and Cottons Glass & Aluminium PL v Handsaker [2006] NSWCCPD 205.

His Honour said [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 PL v Gordon (2006) 225 CLR 364.

"The decisions in Kurrajong Holdings and Cottons Glass contain little analysis on the topic and they point to nothing beyond ss 260 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'."

Then, at [41], Mason P said: "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.

"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.

"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'. [43]

"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," Mason P said.

On the availability of the disease finding, the President said [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 PL (1992) 8 NSWCCR 440; Perry v Tanine PL 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."

The employer had been aware of certain medical reports. Mason P said [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."

Complaint about the intermediate appeal proceeding without oral hearing was also dismissed.

At [98] Mason P said: "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' 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.

"The detailed reasons provided in the determination show that the presidential member understood the employer's submissions, addressing them in turn.

"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. [100]"

It would have been remarkable if the acting deputy president had not had regard to the arbitrator's notes on the Commission file.

Appeal dismissed with costs.

A: L King SC, D G Saul; inst Leigh Virtue & Associates. 1R: M J Joseph SC, J W Catsanos; inst Oates & Smith. 2R: P Webb QC, R A Stanton; inst Sparke Helmore.

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