Ah-Wong v Kiama Coaches Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Ah-Wong v Kiama Coaches Pty Ltd [2021] NSWPIC 234
APPLICANT:	Maa Ah-Wong
RESPONDENT:	Kiama Coaches Pty Ltd
MEMBER:	Elizabeth Beilby
DATE OF DECISION:	8 July 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for psychological injury; Department of Education and Training v Sinclair considered; Held- respondent did not discharge onus so far as reasonable conduct; finding in favour of the applicant.
DETERMINATIONS MADE:	1. The defence pursuant to s11A of the Workers Compensation Act 1987 (the s 11A defence) fails. 2. The matter is remitted to the President to be referred to a Medical Assessor for whole person impairment assessment. The Application, Reply, and late documents so 1 March 2021, 17^th of February 2021 and 2 December 2020 are to be provided to the Medical Assessor. The date of injury is 24 November 2019. 3. The claim in respect of weekly benefits is deferred until the Medical Assessment Certificate has been received. The matter should be listed for telephone conference at short notice following the receipt of the Certificate.

STATEMENT OF REASONS

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) was the applicant’s injury wholly or predominantly caused by the employer’s reasonable action in respect of discipline or provision of employment benefits pursuant to s 11A(1) of the Workers Compensation Act 1987 (the 1987 Act).

BACKGROUND

Mr Ah-Wong (the applicant) was employed as a bus driver for Kiama Coaches Pty Ltd (the respondent). Mr Ah-Wong speaks Samoan and his English is not of a high level.
A factual dispute arises around where the applicant was asked to commence his shift on 19 November 2019.
The applicant’s evidence is that he understood that he was to commence his shift at the Smithfield depot at 3:15 AM, performing work on their Bomaderry roster, then returning to the Smithfield depot. This is consistent with a run sheet that the applicant was provided.
The respondent’s evidence is that the applicant was directed to drive to Kiama after concluding his shift on 18 November 2019.
Substantive evidence has been filed outlining various witnesses’ recollection as to the events that occurred on or about 17 November 2019 to 19 November 2019.
It is undisputed that the applicant and Mr Cooper (the operations manager for the respondent) spoke by telephone on the evening of 18 November 2019 in respect of the applicant’s attendance at Bomaderry/Kiama the next day. The parties disagree strongly as to the content of that conversation.
It is also not disputed that a text message was sent to the applicant by Mr Cooper at 7.12 pm cancelling his job for the following day “because you didn’t follow me [sic] instructions today when I spoke to you on the phone.”[1]

EVIDENCE

[1] Application page 5

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    Application to Resolve a Dispute (Application);
(b)    Reply to the Application to Resolve a Dispute;
(c)    late documents dated 21 December 2020, 17 February 2021 and 1 March 2021;
(d)    submissions from the applicant dated 13 April 2021 and 13 May 2021, and
(e)    submissions from the respondent dated 24 March 2021, 14 April 2021 and 21 May 2021.

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.
The matter was listed for arbitration on the 19 February 2021. At that time the applicant gave oral evidence and was cross-examined. Due to the expiry of time, the parties were directed to file written submissions in respect of the primary liability issue, that is the s 11a defence.
After considering the transcript of the applicant’s evidence, by way of direction dated 7 May 2021 the parties were asked to provide further written submissions on the following matters
(a) The applicant’s statement paragraph 6 (page 1 Application): Because the roster did not say who I was doing the changeover to at Kiama at 12.45pm on the 19th, I tried to call Geoff to find out. He did not answer. I left a message.

(b) The applicant’s oral evidence on page 30:
MR PERRY: The reason that you wanted to speak to Geoff is because you wanted to tell Geoff that you weren’t happy travelling down to Kiama with Geoffrey Connell. That’s why you wanted to speak to Geoffrey Cooper on Monday isn’t it?
APPLICANT: No, the reason I want to tell Geoff I’m looking in the yard, my bus is not there. My bus, I want my bus put in the front. I want to come and get it in the morning. Put it in the front of the yard and I’ll come straightaway. That’s the reason what I’m telling Geoff.
The basis of this request was that it was possible that if I made findings of fact against the applicant and this could impact on his credit.[2]
[2] Finney Pty Ltd t/as Cut-Price Car Rentals v Chequer (2000) NSWPI CPD 13.

EVIDENCE

I will now look at the evidence in this matter.

THE APPLICANT’S EVIDENCE

The applicant has prepared a statement dated 15 June 2020.[3] The applicant explains that he speaks Samoan and his English is not very good.
[3] Page 1 of the Application.
On 17 November 2019 the applicant recalls Mr Cooper asking him if he would work on Tuesday, 19 November 2019 in Kiama. The applicant affirmed that he would do so and understood it was usual to pick up a bus at Smithfield and drive it to Bomaderry on the morning that the shift began. However, if you were doing an afternoon shift then sometimes you would drive a company car over to the changeover with the earlier driver.
The applicant denies that on Sunday, 17 November 2019 he requested to drive a company car to Kiama from the Smithfield depot on 18 November 2019 after he finished his work at the Smithfield depot.
The applicant worked on Monday, 18 November 2019 from 8.15 am to 3.30 pm out of the Smithfield depot. He then collected his driver instructions from his locker which indicated that he was to start work at 3.15 am at the Smithfield depot on Tuesday, 19 November 2019 and drive from there to Bomaderry and on to Kiama at 5.07 am and then leave Kiama at 12.45 pm and return to Smithfield at 1.30 pm. The driver instructions are annexed to the Application at page 4. It should be observed that the applicant's understanding is consistent with the contents of the written direction.
The applicant says that because the roster did not disclose who he was doing the changeover with at Kiama at 12.45 pm on 19 November 2019 he tried to telephone Mr Cooper to find out and left a message on his voicemail.
As time progressed and the applicant did not hear back from Mr Cooper, he telephoned Michael Corpse at the office and found out that Mr Coooper was attending a funeral.
Mr Cooper called the applicant at approximately 3.15 pm and said he was at a funeral and the telephone call was terminated.
Later that evening on Monday, 18 November 2019 the applicant was at dinner with his family and relatives that were visiting from Samoa. At approximately 6.45 pm he received a call from Mr Cooper who asked where he was. The applicant told him he was at the club with his wife, children, and visitors. When Mr Cooper understood that the applicant was not at Kiama he used words such as “fuck” and “fuck you’re fucked you’d better go” and “fuck, fucking, you never listen”. It is the applicant’s evidence that Mr Cooper was shouting, aggressive, intimidating and swore.
The applicant said after Mr Cooper hung up on him, he tried to call him back but he did not answer.
The applicant then called Kristie Wilson, assistant manager of the respondent, and indicated that the driver instruction sheet indicated that he was to start work at 3.15 am at Smithfield depot. The applicant said that it would be illegal for him to go for another 4 hours to Kiama to which Kristie replied “Maa, you be there at 3.15 in the morning” and further “Maa you are a good boy”.
Shortly after that telephone call the applicant received a text message from Mr Cooper cancelling the shift for the following day.
The applicant’s evidence is that a second telephone call took place with Mr Cooper in which the applicant enquired why the job was being cancelled. The applicant’s evidence is that Mr Cooper swore at him again.
The applicant says that he attended the general practitioner the next morning because he was so upset.
The applicant has provided further evidence contained in a letter dated 11 December 2019 to his solicitor Sue Bowrey.[4] The correspondence does not go significantly further than what the statement says however includes an assumption made by the applicant that Mr Cooper may have been affected by alcohol and further that the language used was very abusive and offensive. The applicant says he feels traumatised by the event.
[4] Page 5 of the Application.
The applicant gave oral evidence when this matter was listed for hearing. As a general proposition it appeared to me that the applicant became frequently confused and at times had some difficulty in understanding the specifics of questions put to him. Generally, however, he seemed to understand the general thrust of cross-examination.
In his oral evidence the applicant confirmed that he had a conversation with Mr Cooper in which he was abusive.[5] He said that Mr Cooper was angry and swore at him and spoke in a loud voice.[6]
[5] T8.l5.
[6] T10.l5.
The applicant was cross-examined about the second telephone call that occurred with Mr Cooper. It was put to the applicant that it was indeed him that called Mr Cooper after the text message and not Mr Cooper calling him. The applicant clarified his evidence that after the text message was received, he indeed called Mr Cooper[7] who did not answer his phone. The applicant then spoke to Kristie on the telephone and then Mr Cooper called back and said his shift was cancelled and then he just hung up.[8] There was no evidence given that the second conversation was abusive.
[7] T21.31.
[8] T20.10.
The conclusion must therefore be reached that there was only one abusive conversation alleged.
The applicant was cross-examined about the arrangements that were made in attending Kiama for work. It was suggested to the applicant that he was told he would need to take the company car with Geoff Connell to Kiama and go to collect Julio and go to the accommodation.[9] The applicant replied that he did agree that he would be working in Kiama on Tuesday however was told that the paperwork was in his lock [sic] as was the paperwork for Kiama. The applicant denied he was ever told to pick up anyone or take anyone in the car. The applicant further explained that it would have been illegal for him after working a long day to go straight to Kiama. That is, he had started earlier that day.
[9] T24.25.
The applicant further denied that it was ever suggested to him that he would have to travel with Geoff Connell to Kiama.[10] The applicant explained it was his understanding that he would pick up a bus at Smithfield and travel on the Tuesday morning.[11]
[10] T26.32.
[11] T29.10.
In relation to a telephone call being made to Michael Corpse the following day, that is 18 November, the applicant had no recollection of saying that he would not travel to Kiama with Geoffrey Connell.
The applicant explained that the reason he called Mr Cooper was that he was looking in his yard and his bus was not there. He wanted to come and get it in the morning, and he wanted it to be put in the front. That’s the reason he called.[12]
[12] T30.15.
The applicant was also cross-examined about the contents of the driver direction sheet which indicated that he must be at Bomaderry at 4.37 am on the relevant day. It was put to the applicant that it was impossible for him to be at Bomaderry at 4.37 am if he left Kiama at 3 am. The applicant said that he did not prepare the roster and he followed the time on it that he was meant to start.
What is evident about the applicant’s evidence is that though he was subject to strenuous cross-examination by Mr Perry of Counsel, he denied ever being instructed to attend Kiama on the night before the shift started. Indeed, though matters were put to him on at least three occasions, he maintained his evidence that he was to follow the paperwork that was in his lock [sic].
It was put to the applicant that his evidence was false, and he was angry with his employer for taking away a shift. The applicant denied that and reiterated that Mr Cooper was angry with him and abusive.

Geoffrey Cooper

Geoffrey Cooper was the operations manager for the respondent company. He has prepared a statement dated 10 March 2020.[13] Mr Cooper states on 17 November 2019 he contacted the applicant to ask if he could work at Kiama the following shift and ongoing for the remainder of the week. The applicant agreed that he could work in Kiama.
[13] Page 37 of the Reply.
Mr Cooper says that he advised the applicant that the arrangements would be that after his shift on 18 November 2020 the applicant would take a company car and another driver namely, Mr Geoff Connell and drive to Kiama from the depot. At the depot he was to pick up a driver called Julio Riveiro and they would go to a provided accommodation. Mr Cooper also understood that Mr Connell had an issue with the applicant, and it was agreed that Mr Connell would travel there on his own.
On 18 November 2019 Mr Cooper was at a funeral when he says he received multiple calls from the applicant. He did not take his calls however ultimately returned his call at approximately 3.12 pm. Mr Cooper says that in that telephone call he advised the applicant that Mr Connell would be travelling on his own and spoke to him about the importance of the relocation because of an early start the following day and that the vehicle he was taking was needed for the other driver’s transport. The telephone call took approximately one minute.
At approximately 6.40 pm on 18 November 2020 Mr Cooper received a call from Mr Riveiro asking where the applicant was. He then contacted the applicant and asked him where he was. The applicant responded he was in Blacktown and Mr Cooper says he could hear the noise of poker machines in the background. Mr Cooper asked the applicant why he had not followed instructions and the only response was “I’m at the club boss”.
Mr Cooper then discussed the situation with the general manager Ms Wilson and it was agreed that due to driver fatigue management the applicant would be taken off his shift. He had a 3.15 am start in Kiama and would have to be at the depot by midnight to get to Kiama. He then made the decision to cancel the arrangement.
Mr Cooper denies that he made a second telephone call to the applicant and further denies being abusive towards him during the first conversation.
Mr Cooper has prepared a second statement dated 6 August 2020.[14] In that second statement Mr Cooper addresses the need for the applicant to travel to Kiama on the afternoon of 18 November 2019. He says that when drivers are to go away for work it was his custom to call them to enquire if they are happy to relocate. He also wanted to ensure the drivers understood the instructions on the job sheet.
[14] Page 50 of the Reply.
Due to driver fatigue he told the applicant that he wanted him to go to Kiama the day before and to take a company ute. This was to commence a shift in Kiama commencing 19 November 2019 at 2.50 am. Mr Cooper says that he had the same conversation with Mr Connell around the same time.
Mr Cooper also indicated that he had received a telephone call from Mr Connell who indicated he did not want to travel with the applicant.

Michael Corpse

He states that he received a telephone call from the applicant regarding the travel arrangements. He understood the applicant was unhappy with travelling with another driver and also the accommodation arrangements. Mr Corpse says that he advised the applicant that these were the arrangements in place.
An interesting aspect about Mr Corpse’ evidence is that he told the applicant that ‘no other arrangements could be made’ despite the fact that Connell was to start work a day after the applicant and it had already been determined that Connell could travel alone.

Kristie Wilson

Ms Wilson was the general manager at Kiama Coaches. She has prepared a statement dated 10 March 2020.[15] Ms Wilson was on the bus in the company of Mr Cooper on 18 November 2019. She states that she was sitting directly in front of Mr Cooper on the bus and could hear Mr Cooper’s voice. She states that at no time did she hear Mr Cooper be abusive to anyone.
[15] Page 28 of the Reply.
Ms Wilson did not provide any evidence to contradict the applicant’s assertion that he spoke to her on 18 November 2019. The content of the call has not been challenged by Ms Wilson, that is that she told the applicant he was a ‘good boy’ and to start his shift at 3.15am

Feniaso Seiulie

Mr Seiulie is a coach driver for the respondent and has prepared a statement dated 10 March 2020.[16] Mr Seiulie was on the bus and recalls hearing Mr Cooper having telephone calls with various people but he does not know who. He never heard Mr Cooper be abusive, discriminatory or use bad language on the phone calls.
[16] Page 42 of the Reply.

Richard Jenson

Mr Jenson is the owner and operator of S & R Coaches and has prepared a statement dated 10 March 2020.[17] Mr Jenson was on the bus when the telephone calls took place and says he heard Mr Cooper say “Maa, why aren’t you in Kiama yet?” Mr Jenson was sitting across the aisle and two seats away from Mr Cooper and says that he heard him on the phone to various people but did not hear him being abusive, discriminatory or use bad language in any of the telephone calls.
[17] Page 46 of the Reply.

Mr Connell

Mr Connell, coach driver, has prepared a statement dated 6 August 2020.[18] Mr Connell indicates that he did not have a good relationship with the applicant and felt that he had been physically threatened by him. He witnessed the applicant getting stroppy and arguing with Mr Cooper in a telephone call.
[18] Page 54 of the Reply.

CONSIDERATION

The respondent says that the applicant is not entitled to compensation as it can rely on the defence of the reasonable action of employer provided by s 11A of the 1987 Act.
Section 11A(1) provides –
“No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken on or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.”
An employer who seeks to make out such a defence pursuant to section 11A carries the onus of establishing that defence (Department of Education and Training v Sinclair [2005] NSWCA 465 ((Sinclair). 45. In considering the meaning of reasonableness, assistance can be obtained from his Honour Judge Geraghty in Irwin v Director General of Education NSW CC 14068/97, 18 June 1998 where he said
“The question of reasonableness is one of fact, weighing all the relevant factors. The test is less demanding than the test of necessity, but more demanding than the test of convenience. The test of ‘reasonableness’ is objective and must weigh the rights of employees against the object of the employment. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness.”
In Sinclair, Spigelman CJ observed that it is essential to look at the entire process to see if it was a reasonable action within section 11A. That includes looking at the circumstances surrounding the action, both before and after the action

The telephone call

Much of the debate between the parties has related to whether an abusive telephone call took place between Mr Cooper and the applicant. There is significant difficulty in evaluating the evidence on this point. There is the evidence of the applicant, which clearly is that the conversation he had with Mr Cooper was abusive, loud, discriminative, and included swearing. Then there is evidence from Mr Cooper and witnesses on the bus that indicated that no loud abusive conversation took place on the bus.
The respondent points to the importance of the evidence of Kristie Wilson who was sitting directly in front of Mr Cooper at the time of telephone calls, her evidence was that she could not hear any abusive conversation. The difficulty in evaluating what Ms Wilson could hear is that I have no information as to what was going on the bus generally at that time. That is, was it a full bus with animated discussion or was it a sombre empty bus that limited noise.
The evidence of Mr Richard Jenson also has the same difficulty. Mr Jenson was sitting across the aisle and two seats away from Mr Cooper. Without understanding the ambient environment, it is difficult to properly evaluate the evidence of these two witnesses.
However, considering the applicant’s evidence that Mr Cooper was abusive, swearing and shouting at him, it is difficult to understand how at least Miss Wilson would not hear such a conversation if it occurred in that manner. That is, I find it more probable than not that if Mr Cooper was shouting at the applicant, as alleged, that she would have heard such an interaction in that manner.
The applicant asks me as an initial limb of its case to find that Mr Cooper was aggressive, swearing and shouting in a telephone call that took place whilst he was on a bus following a funeral. After considering the evidence from Mr Cooper and to a lesser extent Ms Wilson and Mr Jenson to make such a finding would mean that I would need to reject their evidence and I am not willing to do so for reasons already outlined. .
What does seem consistent with the evidence is that Mr Cooper held the view that the applicant had been instructed quite clearly to travel to Kiama on the afternoon of 18 November 2019. It seems to me to be an obvious inference that he expressed displeasure to the applicant about his perceived failure to follow instruction. Such communication could have been received by the applicant as hostile.
The respondent’s submissions discuss the applicant’s credit[19] and further the submissions dated 13 May 2021. For reasons I have already outlined I am not persuaded on the balance of probabilities that the abusive telephone call occurred in the way that it is described by the applicant, though I do accept it is more probable that not that the telephone call was hostile in its character. The reason for the hostility was that Mr Cooper thought that the applicant had failed to follow a clear direction.
[19] Paragraphs 23-41 of Submissions dated 23 March 2021
Not finding that the telephone call occurred in the manner as described does not lead to a finding against the applicant’s credit directly. Simply it reflects differing observations of a conversation.
To be clear this is my first finding of fact, the applicant needs to establish facts in relation to its case, however the burden of proof in respect of the s 11A defence is reversed. In relation to this fact, I find that the respondent has discharged the burden of proof in relation to the telephone call to the extent that there were not loud abusive words spoken as the applicant alleges.
A Member is entitled to take into account his or her observations of the demeanour of a witness in the hearing room, particularly when cross-examined. If such observations may influence the outcome of the case and the inference will be drawn, the Member should inform the legal representatives so that they can make submissions in relation to it.[20]
[20] Chaina v Alvoro Homes Pty Ltd [2008] NSWCA 353;
After observing the applicant give evidence, I felt that he was indeed convinced that he was to commence work at Smithfield on 19 November 2019. The applicant was challenged as to his understanding but was resolute in his evidence.
There was however what I initially perceived to be a contradiction in the applicant’s evidence as to the reason he called Mr Cooper. After considering the submissions made by the parties, I am satisfied that there appear to be two differing motivations for contacting Mr Cooper and accept that they are not mutually exclusive, that is that he wanted to establish who he was doing the changeover with in Kiama and also to make sure his bus was out the front of the yard in the morning.

Cancellation of the shift

The interesting issue in this case is what happens to the applicant’s claim if there has been a finding that the telephone conversation was not abusive and therefore not injurious.[21] The second limb of the applicant’s case is that the injurious event was the cancellation of the following days shift.
[21] Applicants submissions dated 12 April 2021 paragraph 7.
The respondent in its submissions[22] says that the cancellation of the shift was reasonable because it was keeping with the respondent’s safety policy and relates to the provision of employment benefits.
[22] Paragraph 44 (iii).
Whilst there is some conjecture whether the cancellation of the shift relates to the provision of employment benefits, the preliminary question is whether the action to cancel the shift was reasonable. If the answer is affirmative, then the question moves on to whether it falls within the characterisation of employment benefits. If the answer is negative, then the respondent has not discharged the onus it wears.
The respondent submits that the cancellation of the shift was reasonable given the applicant’s presence at a function in Blacktown at 6.45 pm on 18 November being inconsistent with him travelling safely to Kiama and then Bomaderry early the following morning.
Whilst this submission does have some force, it is difficult to find in favour of the respondent in the absence of the required evidence.
The evidence of Mr Cooper was that he felt that it was unsafe to the applicant to start a 3.15am shift in Kiama the next day which would entail being at the depot at Midnight to get to Kiama[23]. The driver instruction sheet clearly contradicts this assumption, it clearly shows that the shift started at 4.37am with the first pick up at 5.07am. It therefore appears that Mr Cooper had in incorrect understanding of the start time and therefore assumed incorrectly when the applicant would have to be at the Smithfield depot. There is almost a 1.5 hour difference based on his incorrect assumption.
[23] Paragraph 18 of his statement.
I have not been provided with any safety policy as to what is appropriate so far as the respondent was concerned and therefore it is very difficult for me to find that the applicant having a break after work and then going home after spending some time at the club would not be in keeping with a safety policy. There is no evidence before me that the applicant was drinking excessively or that he did not have an intention to return home at a reasonable time. These are the matters that I would be required to find and be informed of if the respondent’s argument was successful in this regard.
So far as safety is concerned I’m also left without any information as to why it was safe for the applicant to complete a full day’s work on 18 November and then proceeded to Bomaderry rather than start his shift earlier the following day commencing at Smithfield . I have no information how such arrangements violate safety considerations.
Further, as submitted in the applicant’s submissions dated 12 April 2021, the communication with the applicant by a text message at 7.12 pm made no mention to the applicant of any safety policy. It was merely that “you didn’t follow my instructions today”. I agree with the applicant’s submission that on the face of the message the cancellation appears to be punitive consistent with Mr Cooper feeling angry with the applicant having not followed what he thought were clear instructions.
This then leads to two possibilities that firstly the cancellation was on the basis of safety considerations which I cannot accept because there is not enough evidence for me to find that that was reasonable action on behalf of the respondent or secondly that the cancellation was because Mr Cooper was angry with the applicant and it was punitive in its design and on that basis it cannot constitute reasonable action either. On both fronts the respondent’s defence fails.
Two further matters also weigh against a finding that the cancellation of the shift was reasonable action.
Firstly, the driver’s instruction sheet is quite clear in that the applicant was told to leave Smithfield depot at 3.15 am. There is no evidence to explain the contents of the run sheet, why it was incorrect or why the applicant ought to have ignored it. In order for me to simply reject the contents of the instruction sheet, I would need to understand quite clearly why it would be reasonable to expect the applicant to ignore its contents.
Secondly, the applicant’s evidence, which is unchallenged, is that he spoke with Ms Wilson who confirmed that he was to start his shift at 3.15am. It could not be reasonable to cancel the shift shortly after that call on the basis that the applicant did not follow instruction.
After considering the evidence before me, the respondent has not discharged the burden of proof in respect of its s11A defence.

CONCLUSION

As I have found that the s 11A defence has failed, the matter should be referred to the President to be remitted to a Medical Assessor for whole person impairment of the applicant's psychological condition.
It was agreed at the arbitration that if the applicant was successful in his claim then further submissions can be made with regard to incapacity. It will be of some assistance to me for the Medical Assessment Certificate to be before me when making findings respect incapacity.
The matter should therefore be listed at short notice for telephone conference after receipt of the Medical Assessment Certificate to discuss incapacity, at which time directions can be made in respect of written submissions. In the alternative, Consent Orders can be filed outlining the parties agreement as to incapacity.

[2021] NSWPIC 234

8 July 2021