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Reconsideration

Altos v Registrar WCC & Anor [2008] NSWSC 148. Malpass AsJ.

Earlier, Malpass AsJ deliberated on 1998 Act s 378, at [29] to [33].

"The section confers jurisdiction to reconsider where a decision has been made by the Registrar, an approved medical specialist or an appeal panel. What may be reconsidered is any matter that has been dealt with by the decision maker in the process of making the decision. Presumably, it is contemplated that the reconsideration will be by the earlier decision maker. The power conferred upon the decision maker is to rescind, alter or amend a previous decision.

"As the legislation has earlier enacted an appeal process where a decision has been made by an approved medical specialist, it could be expected that the reconsideration was not intended to cover the same territory. It seems to me that the concept of a 'reconsideration' involves the decision maker in having a further look at a matter that has been dealt with in the making an earlier decision. I do not consider that it contemplates looking at fresh matters, such as the complaint about the interpreter which was first raised in the reconsideration.

"One clear function intended to be performed by a reconsideration was to enable the correction of obvious error in the text of a decision. This is a power akin to what has been referred to as the 'slip rule'. The language of subs (1) suggests a wider scope, perhaps a restricted alternative remedy to correct error in respect of a matter. Whatever it was intended to cover is best left for another day when the court has the benefit of full argument.

"The language of the section does throw up one tantalising issue for the future. There may be a need to distinguish what is referred to in the legislation as 'demonstrable error' and what is described as 'obvious error'.

"It can also be assumed that the legislature did not intend that the section would become an instrument for abuse (by way of repeated application for reconsideration). The section can be approached on the basis that finality of decisions was intended."

Samuel v Sebel Furniture Ltd [2006] NSWWCCPD 141. Roche ADP.

58. Having regard to the above authorities and the provisions and objectives of the 1998 Act I believe that the following principles are applicable to reconsideration applications under section 350(3) of the 1998 Act:

  1. the section gives the Commission a wide discretion to reconsider its previous decisions Hardaker;
  2. whilst the word ‘decision’ is not defined in section 350, it is defined for the purposes of section 352 to include “an award, order, determination, ruling and direction”. In my view ‘decision’ in section 350(3) includes, but is not necessarily limited to, any award, order or determination of the Commission;
  3. whilst the discretion is a wide one it must be exercised fairly with due regard to relevant considerations including the reason for and extent of any delay in bringing the application for reconsideration: Schipp;
  4. one of the factors to be weighed in deciding whether to exercise the discretion in favour of the moving party is the public interest that litigation should not proceed indefinitely Hilliger;
  5. reconsideration may be allowed if new evidence that could not with reasonable diligence have been obtained at the first Arbitration is later obtained and that new evidence, if it had been put before an Arbitrator in the first hearing, would have been likely to lead to a different result: Maksoudian;
  6. given the broad power of ‘review’ in section 352 (which was not universally available in the Compensation Court of NSW) the reconsideration provision in section 350(3) will not usually be the preferred provision to be used to correct errors of fact, law or discretion made by Arbitrators;
  7. depending on the facts of the particular case the principles enunciated by the High Court in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589 may prevent a party from pursuing a claim or defence in later reconsideration proceedings if it unreasonably refrained from pursuing that claim or defence in the original proceedings;
  8. a mistake or oversight by a legal adviser will not give rise to a ground for reconsideration Hurst,
  9. and the Commission has a duty to due justice between the parties according to the substantial merits of the case: Hilliger, and section 354(3) of the 1998 Act.

 

Rasia v University of Sydney (No 2) [2011] NSWWCCPD 29. O'Grady DP.

THE POWER TO RECONSIDER
[11] The scope of the Commission’s power to reconsider a decision is expressed in broad terms in s 350(3) of the 1998 Act and the Act contains no provision limiting that power. Having regard to earlier authorities which concerned the construction and application of similar provisions including s 36(2) of the Workers Compensation Act 1926 (the 1926 Act) and s 17(4) of the Compensation Court Act 1984 (the Court Act), the legislative predecessors of s 350(3), and more recent authority, there is no doubt that reconsideration may involve an examination of changed circumstances, or of fresh evidence concerning the original circumstances considered at the time of the original decision: see Hardaker v Wright & Bruce Ltd [1962] SR (NSW) 244; Maksoudian v J Robins & Sons PL [1993] NSWCC 36; 9 NSWCCR 642 and Samuel v Sebel Furniture Ltd [2006] NSWWCCPD 141; 5 DDCR 482.

...
[13] Commentary by CP Mills in Workers Compensation (NSW), 2nd ed (1978) remains pertinent to an analysis of the Commission’s power to reconsider a decision.

It was stated, following a consideration of the decision in Hardaker, (at 416):

“Their Honours emphasized the distinction between the existence of the power and the occasion of its exercise: public interest demands that litigation should not proceed interminably; a party must produce all the available evidence in support of his claim at the original hearing, and the courts must be on their guard to see that the same matter is not re-litigated again and again.

“However, it is clear that the legislature intended to leave the Commission with the power of review in order to see that justice is done between the parties.”

 

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