Kirunda v NSW Police Service (No 3) [2017] NSWWCCPD 1

The issue of whether a Deputy President of the WCC has the power to reconsider an arbitral decision and/or exercise its discretionary power under section 350(3) of the 1998 Act continues in the series of appeals in Kirunda v NSW Police Service.

An appeal to a Presidential member from a decision of an Arbitrator is brought pursuant to s 352 of the 1998 Act in respect of any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing. A request for reconsideration is an application that seeks to rescind, alter or amend any decision previously given by the Commission, rather than appealing the decision.

The latest appeal decision is found in Kirunda v NSW Police Service (No 3) [2017] NSWWCCPD 1 presided by Deputy President Michael Snell.

Kirunda (the injured worker) alleged he sustained a psychological injury in the course of his employment with NSW Police Force. Liability was disputed based on sections 4, 9A and 11A (1) of the 1987 Act. The matter proceeded to a contested hearing before Arbitrator Wynyard who found in favour of the insurer.

First appeal

On 10 January 2016 Kirunda appealed the decision of Arbitrator Wynyard. On 11 August 2016 DP Snell allowed Kirunda’s appeal and set aside Arbitrator Wynyard’s findings. DP Snell remitted the matter to a new Arbitrator for re-determination

Second appeal

Kirunda filed an Application for Reconsideration of DP Snell’s decision in Kirunda 1 (to remit the matter for re-determination) under section 350(3) of the 1998 Act. On 11 October 2016 DP Snell refused Kirunda’s reconsideration application and said there was no appropriate basis for the exercise of the discretionary reconsideration power pursuant to section 350(3).

Third appeal

Kirunda filed a second Application for Reconsideration against DP Snell’s decisions in Kirunda 1 and 2 (remitting the matter to another arbitrator to re-determine his matter). Kirunda also sought reconsiderations of two arbitral decisions. On 10 November 2016 Kirunda then filed a Notice of Appeal to the Court of Appeal in relation to Kirunda 1 and 2. On 2 February 2017 DP Snell again refused Kirunda’s request for reconsideration for the same reasons outlined in Kirunda 2. DP Snell found he did not have jurisdiction to reconsider an arbitrator’s decision.

Lessons learned

While the reconsideration power under section 350(3) gives the Commission a wide discretion to reconsider its previous decisions, what has clearly emerged from Kirunda are the following lessons:

• Reconsiderations are generally restricted to circumstances where fresh evidence has become available and would likely lead to a different result (Maksoudian v J Robins & Sons Pty Ltd [1993] NSWCC36);
• Reconsideration needs to be exercised by the arbitrator who made the original decision (Cameron v The Registrar of the Workers Compensation Commission of New South Wales [2008] NSWSC 704);
• Reconsideration becomes inappropriate if you have exercised your right of appeal in the Court of Appeal (Inghams Enterprises Pty Ltd v Rachmaninoff (No 2) [2011] NSWWCCPD 61); and
• An appeal to Presidential member pursuant to s 352 of the 1998 Act is in respect of any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review.
• If the decision of an Arbitrator is subject to an application to reconsider, that application is made to the Arbitrator, a Presidential member lacks jurisdiction to deal with it. A Presidential member has jurisdiction to reconsider a Presidential decision. This is because the reconsideration is to be done by the same level of member which constituted the Commission when the original decision was made.

Authors: Stephen Marsh and Aprille Lim