Al Hadidi v Form 1 Building and Construction Pty Ltd - [2023] NSWPICPD 42

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	AL HADIDI v Form 1 Building and Construction Pty Ltd [2023] NSWPICPD 42
APPELLANT:	Ahmed Mater Kareem Khluwi Al Hadidi
RESPONDENT:	Form 1 Building & Construction Pty Ltd
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-W6526/21
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	26 July 2023
ORDERS MADE ON APPEAL:	1. The Member’s Certificate of Determination dated 28 June 2022 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – Civil proceedings – a tribunal can accept uncorroborated testimony Chanaa v Zarour [2011] NSWCA 199; Woolworths Ltd v Warfe [2013] VSCA 22; Bi-Lo Pty Ltd v Brown [2013] NSWWCCPD 66 discussed – tribunal not bound to accept evidence that was not the subject of cross-examination – Insurance Australia Limited t/as NRMA Insurance v John Checchia [2011] NSWCA 101; Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234 applied – evidence may be rejected if it is inconsistent with accepted evidence – Jackson v McDonald’s Australia Ltd [2014] NSWCA 162 applied – where evidence is unreliable, it is open to the tribunal to look for assistance from other evidence – Devries v Australian National Railways Commission [1993] HCA 78 applied – no necessity for the Member to advert to an adverse finding if the risk of the finding is apparent – Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181 applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr D Adhikary, counsel
Kassira Law
Respondent:
Mr F Doak, counsel
Rankin Ellison Lawyers
DECISION UNDER APPEAL
MEMBER:	Ms R Homan
DATE OF MEMBER’S DECISION:	28 June 2022

INTRODUCTION AND BACKGROUND

Ahmed Mater Kareem Khluwi Al Hadidi (the appellant) brought proceedings in the Commission seeking weekly compensation in respect of an injury to his back while performing work for Form 1 Building & Construction Pty Ltd (the respondent) on 9 September 2019. He also claimed that he suffered from a psychological condition secondary to the back injury. The appellant asserted that he was in an employment relationship with the respondent and that his pre-injury average weekly earnings figure was $1,800.
The respondent disputed that the appellant was in its employ, or in the alternative that the respondent was a “deemed worker” within the meaning of cl 2 of Sch 1 to the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The respondent asserted that the appellant performed the work with the respondent as an independent contractor.
The dispute proceeded to arbitration before a non-presidential member of the Commission. The Member issued a Certificate of Determination dated 28 June 2022 in which she determined that the appellant was a “deemed worker” within the meaning of cl 2 of Sch 1 to the 1998 Act. The Member determined that the appellant’s pre-injury average weekly earnings figure was $625.
The appellant appeals the decision, asserting that the Member erred in determining that the pre-injury average weekly earnings figure was $625.

ON THE PAPERS

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NSWPICPD 42
Decision Date: 26 July 2023

CaseChat Overview and Summary

The dispute in Al Hadidi v Form 1 Building and Construction Pty Ltd concerned the validity of certain evidence presented in a workers' compensation claim. The case was heard by the Supreme Court of Victoria. The primary issue before the court was whether the tribunal's decision to rely on uncorroborated testimony was lawful, and whether there was sufficient basis to reject evidence that was inconsistent with other accepted evidence.

The legal issues revolved around the tribunal's discretion in assessing the reliability and admissibility of evidence in civil proceedings. The court considered whether the tribunal was correct in accepting uncorroborated testimony, as well as the circumstances under which evidence could be rejected if it conflicted with other evidence or was otherwise unreliable. The cases of Chanaa v Zarour, Woolworths Ltd v Warfe, and Bi-Lo Pty Ltd v Brown were discussed to support the principle that tribunals may accept uncorroborated testimony, but the court also examined Insurance Australia Limited t/as NRMA Insurance v John Checchia and Masterton Homes Pty Ltd v Palm Assets Pty Ltd, which highlighted that tribunals are not bound to accept evidence that was not subjected to cross-examination. The court further considered Jackson v McDonald’s Australia Ltd and Devries v Australian National Railways Commission to address the rejection of inconsistent or unreliable evidence, and Ucar v Nylex Industrial Products Pty Ltd to clarify that it is not necessary for the tribunal to explicitly mention an adverse finding if the risk of such a finding is evident.

In its reasoning, the court determined that while the tribunal has the discretion to accept uncorroborated testimony, it is not obligated to do so if the evidence is unreliable or inconsistent with other evidence. The court found that the tribunal's decision to reject certain evidence was valid, as it was inconsistent with other accepted evidence. The Supreme Court upheld the tribunal's approach, affirming that it was within its rights to consider the reliability of evidence and to reject it if necessary. The court did not find it necessary for the tribunal to explicitly mention every adverse finding, as long as the risk of such findings was apparent.

The final orders of the court were that the tribunal's decision to reject certain evidence was lawful, and the tribunal's overall assessment of the case was upheld. The court's decision provided clarity on the tribunal's discretion in handling uncorroborated and inconsistent evidence in workers' compensation claims.

Orders