Aldi Stores (A Limited Partnership) v Risteski - [2022] NSWPICPD 43

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Aldi Stores (A Limited Partnership) v Risteski [2022] NSWPICPD 43
APPELLANT:	Aldi Stores (A Limited Partnership)
RESPONDENT:	Mende Risteksi
INSURER:	QBE Workers Compensation (NSW) Limited
FILE NUMBER:	A1-W1255/22
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	14 November 2022
ORDERS MADE ON APPEAL:	1. The appellant’s application for leave to appeal an interlocutory order pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) is granted. 2. The appellant’s application to adduce additional evidence pursuant to s 352(6) of the 1998 Act is refused. 3. The Member’s decision to refuse the application to join Target Australia Pty Ltd is revoked. 4. The matter is remitted to another Member to: (a) make the appropriate order joining Target Australia Pty Ltd to these proceedings in accordance with r 62 of the Personal Injury Commission Rules 2021; (b) make such further orders and directions as the Member considers appropriate, and (c) proceed to determine the matter.
CATCHWORDS:	WORKERS COMPENSATION – Leave to appeal an interlocutory decision of the Commission pursuant to s 352(3A) of the 1998 Act – leave to adduce additional evidence on appeal – CHEP Australia Limited v Strickland [2013] NSWCA 351 applied – principles applicable to determining an appeal from a discretionary decision – Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr G Guest, solicitor
Sparke Helmore Lawyers
Respondent:
Ms E Grotte, counsel
Santone Lawyers

DECISION UNDER APPEAL
MEMBER:	Ms J Snell
DATE OF Member’s DECISION:	1 April 2022

INTRODUCTION AND BACKGROUND

Mr Mende Risteski (the respondent) was employed by Aldi Stores (A Limited Partnership) (the appellant) as a transport operator from approximately July 2019 until August 2020. On 3 September 2020, the respondent lodged a claim for workers compensation, alleging that as a result of the manner in which he was treated in his employment with the appellant, he suffered a psychological injury in the form of an adjustment disorder, and aggravated a pre-existing substance abuse disorder and Post Traumatic Stress Disorder. The respondent’s pre-existing conditions were attributed to his exposure to trauma as a victim of two armed robberies in the course of his former employment with Target Australia Pty Ltd (Target) in 2003.
The claim for compensation against the appellant was initially accepted by the appellant and the respondent was paid weekly compensation from 20 August 2020 to 1 March 2022. On 11 January 2022, the appellant issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), disputing liability for ongoing weekly payments and treatment expenses. The basis of the dispute was said to be that the respondent had recovered from the injury with the appellant and that any ongoing incapacity was not attributable to the respondent’s injury with the appellant.[1]
[1] Application to Resolve a Dispute (ARD), pp 75–77.
On 3 March 2022, the respondent commenced proceedings against the appellant in the Personal Injury Commission (the Commission), seeking ongoing weekly payments of compensation and treatment expenses. The matter was allocated to a Member of the Commission and a telephone conference was conducted on 1 April 2022. At the telephone conference, the appellant sought leave to join Target to the proceedings pursuant to r 62 of the Personal Injury Commission Rules 2021 (the 2021 rules). The Member refused the application and listed the matter for conciliation and arbitration on 20 May 2022. The telephone conference was not recorded, so there is no transcript of the submissions made or of the Member’s reasons for determination.
The appellant lodged this appeal in respect of the Member’s refusal to allow the joinder. There is no dispute between the parties that the Member’s refusal constituted an interlocutory decision and as such, in accordance with s 352(3A) of the 1998 Act, the appellant requires leave to bring the appeal.

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:
“(3) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Both parties have indicated that they are content for the application for leave to appeal and, if leave is granted to appeal, for the appeal to be determined on the basis of the documents and their written submissions. I have had regard to Procedural Directions PIC2 and WC3, the documents that are before me, and the submissions by the parties that the application for leave to appeal and the appeal can proceed to be determined on the basis of these documents. I have also had the benefit of the parties’ best recollections of what transpired in the telephone conference, which was not transcribed. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

THE PARTIES’ RECOLLECTION OF WHAT TRANSPIRED AT THE TELEPHONE CONFERENCE

Given the absence of a transcript, the parties were requested to provide their best recollection of what transpired at the telephone conference.
The appellant advised that it submitted that:
(a)    it was not contested that the respondent had been the victim of two armed robberies in the course of his employment with Target, which caused Post Traumatic Stress Disorder and substance abuse disorder;
(b)    the medical evidence that the respondent’s prior injuries were relevant to his current clinical presentation was “unanimous”, including the psychiatric opinions of Dr Richa Rastogi, Dr Michael Hong, and Dr Yajuvendra Bisht;
(c)    the appellant had served a further report from Dr Bisht, who attributed 50% of the respondent’s condition to the earlier injuries;
(d)    there was an absence of evidence that the respondent had recovered from the prior injuries, and
(e) if there was an award of compensation made, the appellant was entitled to seek a contribution pursuant to s 22 of the Workers Compensation Act 1987 (the 1987 Act).
The appellant further advised that it recalled that the respondent submitted that:
(a)    his evidence was that he had recovered from the earlier injuries;
(b)    he had returned to work and worked for a significant period of time up until the events that occurred in the course of his employment with the appellant;
(c)    the earlier injuries were not relevant, and
(d)    it was therefore not necessary to join Target to the proceedings.
The appellant recalled that the Member declined to grant leave to join Target to the proceedings because the respondent “could plead his case as he wanted.”
The respondent agreed that he submitted to the Member that it was a matter for him how he ran his case. He added that he submitted that the only evidence inculpating Target was that of Dr Bisht in his supplementary report dated 31 March 2022, which was not before the Member. Further, Dr Bisht’s report was internally inconsistent, illogical and a mere ipse dixit. The respondent said that he submitted that the Member would prefer the opinion of Dr Rastogi and, given that the respondent worked for a significant time after the injuries at Target, it was a matter of common sense that his current disabilities resulted from the aggravation of his condition while working for the appellant. The respondent indicated that the parties had agreed that the matter should be listed for conciliation and arbitration.
Given the parties have clear and detailed recollections of what transpired in the telephone conference and there does not appear to be any disparity in those recollections, I am of the view that this application to appeal can proceed in the absence of a transcript of the telephone conference having been recorded.

THE APPLICATION FOR LEAVE TO APPEAL

The appellant seeks leave to appeal the interlocutory decision. Section 352(3A) of the 1998 Act provides that there is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute. It is therefore necessary to consider the nature of the dispute and the orders sought on appeal.[2] It is appropriate to take into account the merits (if any) of the grounds of appeal.
[2] Collingridge v IAMA Agribusiness Pty Ltd [2011] NSWWCCPD 31.
The respondent opposes the application for leave to appeal the decision. The respondent refers to the requirement in s 352(3A) that the Commission is not to grant leave to appeal an interlocutory decision unless it is of the opinion that it is “necessary or desirable for the proper and effective determination of the dispute.” The respondent says that it is not necessary to determine the dispute about the Member’s interlocutory order.

The nature of the dispute between the parties

The respondent’s injury is relevantly described in the Application to Resolve a Dispute (ARD) as:
“The [respondent] sustained psychological injury including adjustment disorder in addition to aggravating his pre-existing substance abuse disorder and PTSD, as a result of bullying, harassment, isolation and victimisation in the workplace from approximately September 2019 - August 2020.”[3]
[3] ARD, p 7, Injury Details.
In the notice dated 11 January 2022 issued by the appellant pursuant to s 78 of the 1998 Act, the appellant disputed liability for further weekly payments of compensation on the basis that the respondent:
(a)    had not suffered an injury pursuant to s 4 of the 1998 Act;
(b)    did not have any incapacity related to the injury with the appellant, and
(c)    was not entitled to any treatment expenses as those expenses were not reasonably necessary as a result of the injury.[4]
[4] ARD, p 75.
The appellant provided reasons for the decision in a document attached to the notice.[5] The appellant asserted that the respondent’s claim was disputed on the basis that he had recovered from the effects of the injury with the appellant and the respondent’s ongoing incapacity did not relate to the injury sustained with the appellant. The appellant referred to and relied upon the opinion of Dr Bisht, who provided a medico-legal report dated 4 January 2022 at the request of the appellant.
[5] ARD, pp 76–77.
The appellant confirmed the issues in dispute in its Reply to Application to Resolve a Dispute (reply).

The orders sought

The appellant seeks leave to appeal the interlocutory decision. The appellant submits that it is in the interests of justice for Target to be joined to the proceedings so that all issues can be dealt with together, including any apportionment under s 22 of the 1987 Act, thereby reducing costs without further significant delay. The appellant adds that the concept of procedural fairness should be considered, because the joinder would enable Target to make submissions about the evidence and its liability. The appellant seeks orders that the Member’s determination be revoked and for leave to be granted to join Target as a party to the proceedings.
The respondent refers to the requirement in s 352(3A) that leave to appeal should not be granted unless the Commission is satisfied that the granting of leave was “necessary or desirable for the proper and effective determination of the dispute.” The respondent points to the delay that he says would result if Target was joined to the proceedings.

The merits of the appeal

The appellant raises one ground of appeal. That is that the Member erred in failing to grant leave to join Target. The basis of error alleged is, in essence, that the appellant has an arguable case that Target is at least partly liable for any compensation entitlements which the respondent may recover. The merits of the appeal and the principles applicable to disturbing the Member’s discretionary decision are discussed below.
The Member did not issue a Certificate of Determination or provide written reasons for her decision. The parties are ad idem in respect of the Member’s reason for refusing the joinder application, which was that the respondent could plead his case as he wished.
The argument put forward by the respondent, which was accepted by the Member, was that he could plead his case as he wished. The submission does not address the substantive issue in dispute raised by the appellant that a third party may be liable for payment of compensation to the respondent. That issue is the core of the dispute between the parties. The issue has an arguable basis upon which it could be raised, as discussed in my reasons that follow.

Conclusion

The recollections of both parties indicate that the Member did not engage with the appellant’s submissions that there was an arguable basis upon which Target should be joined to the proceedings. For the reasons set out below, the Member’s failure to do so amounts to error, which indicates that there is merit in the appellant’s application for leave to appeal.
It is my view that it is appropriate and necessary for the effective determination of the dispute to consider the appeal from the Member’s decision in respect of the application for joinder before the matter proceeds to arbitration. I therefore grant leave to the appellant to appeal the decision of the Member refusing the application to join Target to the proceedings.

THE APPELLANT’S APPLICATION TO ADDUCE ADDITIONAL EVIDENCE

The appellant seeks to rely on the report of Dr Bisht dated 31 March 2022 which had been received by the appellant on that date, in accordance with s 352(6) of the 1998 Act. The appellant indicates that it served the report on the respondent on that date but was unable to lodge the report with the Commission because the Commission’s rules require the lodgment of late documents no later than five days prior to the telephone conference. The appellant says that it referred to the report at the telephone conference and it was noted that the report had been served on the respondent.
The respondent submits that the appellant has given no explanation as to why the report of Dr Bisht dated 31 March 2022 should be admitted on the appeal. The respondent asserts that the attempt to have the report admitted offends the Commission’s procedures, which require evidence to be lodged in sufficient time for the opposing party to be able to respond to that evidence. The respondent submits that the report is not in evidence and therefore cannot be admitted on the appeal.
The respondent refers to CHEP Australia Limited v Strickland,[6] in which the Court of Appeal considered what was required by s 352(6) of the 1998 Act in order to admitt new or additional evidence on an appeal. The respondent says that it was necessary for the appellant to either show that the evidence was not available to the party and could not have been obtained by the party before the proceedings concerned, or that the evidence would be such that a different result would emerge if it were taken into account. The respondent also refers to the decision of Roche DP in Drca v KAB Seating Systems Pty Ltd,[7] in which the Deputy President observed that the second limb identified in Strickland required a careful consideration of the merits of the appeal. The respondent submits that the report should not be admitted on the appeal.
[6] [2013] NSWCA 351 (Strickland).
[7] [2015] NSWWCCPD 10.
Section 352(6) of the 1998 Act provides:
“Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an Appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
Proceedings were commenced in the Commission on 3 March 2022. The report of Dr Bisht was dated 31 March 2022. While the appellant appears to have acted expeditiously to serve the report on the respondent on the date it was received and to provide a copy to the Commission, there is no evidence to show that the report could not have reasonably been obtained by the appellant at an earlier date, so that it could have been lodged with the Commission within the Commission’s time frame. In the absence of such evidence the first limb of s 352(6) is not satisfied. The appellant is therefore required to show that the failure to grant leave to admit the document would amount to a substantial injustice (the second limb of s 352(6)).
In Strickland, Barrett JA observed that what is required in order to satisfy the second limb in s 352(6) is to decide what result would emerge if the evidence was admitted and what would emerge if it were not. At [30]–[31] of the decision, his Honour said:
“Counsel for the appellant submitted that the Commission misdirected itself in law in construing the ‘substantial injustice’ criterion in s 352(6). It was submitted that that criterion may be satisfied in circumstances where it is not possible to say that availability of new evidence would have produced a different result; and that the criterion will be satisfied if the evidence is compelling and might have influenced the outcome even though it cannot be said that it would certainly have done so.
That construction cannot be accepted. The part of s 352(6) concerning ‘substantial injustice’ does not direct attention to possibilities or potential outcomes. The task is to decide whether absence of the evidence ‘would cause’ substantial injustice in the case. There must therefore be a decision as to the result that ‘would’ emerge if the evidence were taken into account and the result that ‘would’ emerge if it were not. If the result would be the same on each hypothesis, the ends of justice cannot be said to have been defeated by exclusion.”
The additional evidence sought to be relied upon in the appeal was not before the Member and thus did not factor in the Member’s determination. The Member arrived at her determination without reference to the evidence of Dr Bisht that was before her at the telephone conference, or in fact the further evidence referred to by the appellant. She determined the issue in the respondent’s favour on the basis that the respondent could argue his case as he pleased. In those circumstances it cannot be said that the additional evidence from Dr Bisht, had it been available to the Member, would have been likely to have resulted in a different outcome, or that a substantial injustice would occur if the report was not admitted on the appeal.

Conclusion

The report of Dr Bisht dated 31 March 2022 is therefore not admitted on the appeal.

CONSIDERATION OF WHETHER THE MEMBER ERRED IN REFUSING THE APPLICATION FOR TARGET TO BE JOINED TO THE PROCEEDINGS

The respondent submits that, if leave to appeal the decision is granted, the appellant is required to establish that the decision was affected by error of fact, law or discretion, as required by s 352(5) of the 1998 Act. The respondent asserts that the appellant has not identified such error on the part of the Member, whose decision involved an exercise of her discretion. The respondent says that the discretion conferred by r 62 is a very broad one. The respondent refers to the principles enunciated in House v The King,[8] and submits that it is not sufficient that an appellate court would have arrived at a different conclusion. The respondent asserts that, applying those principles, the appellant has failed to show that the Member applied a wrong principle, mistook the facts, took into account an irrelevant matter or ignored a relevant matter.
[8] [1936] HCA 40.

The respondent asserts that it is neither “necessary or desirable” to join Target “for the proper and effective determination of the dispute.”[9]
[9] Respondent’s submissions, [31].

The appellant submits that there is evidence to suggest that the respondent’s injuries with Target contributed to the respondent’s current condition and thus there may be grounds upon which any entitlement to compensation should be apportioned between the appellant and Target. The appellant contends that the Member’s decision to decline the application for joinder was contrary to the Commission’s duty to comply with s 42 of the 2020 Act, which relevantly provides:
“42    Guiding principle to be applied to practice and procedure
(1)     The guiding principle for this Act and the Commission rules, in their application to proceedings in the Commission, is to facilitate the just, quick and cost effective resolution of the real issues in the proceedings.
(2)     The Commission must seek to give effect to the guiding principle when it—
(a)exercises any power given to it by this Act or the Commission rules, or …”.
The appellant points to aspects of the medical evidence that it said tended to implicate the earlier employer in any award of compensation and submits that, even on a cursory review of that evidence, the respondent’s prior injuries were significant, and that evidence should have been taken into account by the Member. It submits that there is clearly an argument that the Commission should apportion liability for that compensation. The appellant asserts that it is in the interests of justice that Target is joined to the proceedings so that all issues are dealt with together, thereby reducing costs without further significant delay. The appellant adds that the concept of procedural fairness should be considered, because the joinder would enable Target to make submissions about the evidence and its liability.

The appellant submits that, given Target’s “significant contribution” to the respondent’s psychological condition, the Member ought to have given proper consideration to its submissions supportive of a granting of leave pursuant to r 62. The appellant asserts that the Member’s decision was erroneous by failing to take into account those matters and leave to join Target as a respondent or as third party should be granted.
The Member’s decision as to whether Target should be joined to the proceedings was a discretionary decision about how the matter should proceed, and, as observed by Heydon JA (with Sheller JA and Studdert AJA agreeing) in Micallef v ICI Australia Operations Pty Ltd,[10] in order to disturb the Member’s finding the appellant is therefore required to establish that the Member:
“(a)    made an error of legal principle,
(b)     made a material error of fact,
(c)     took into account some irrelevant matter,
(d)     failed to take into account, or gave insufficient weight to, a relevant matter, or
(e)     arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.”
[10] [2001] NSWCA 274 (Micallef), [45].
It is not contested by the respondent that the appellant submitted to the Member that the evidence from both Dr Rastogi, consultant psychiatrist qualified by the respondent, and Dr Michael Hong, treating psychiatrist, was relevant in terms of the application for joinder.
The respondent indicates that he submitted that the only evidence in support of the application for joinder was the report of Dr Bisht dated 31 March 2022 which was not in evidence. The respondent says that he submitted that the Member would “prefer” the evidence of Dr Rastogi. The respondent asserts that it is neither “necessary or desirable” to join Target “for the proper and effective determination of the dispute.”[11]
[11] Respondent’s submissions, [31].
Dr Bisht assessed the respondent on several occasions. He provided reports dated 17 September 2020,[12] 25 May 2021[13] and 4 January 2022.[14] While the subsequent report dated 31 March 2022 was not before the Member, all three of the earlier reports were before the Member. In the first two reports, Dr Bisht took a history of PTSD with only partial remission, the symptoms of which “overlapped” with symptoms of an adjustment disorder attributable to employment with the appellant. Dr Bisht described the respondent’s injury with the appellant as an aggravation of a pre-existing condition and considered that the aggravation was continuing. In the report of 25 May 2021, Dr Bisht also noted the onset of substance abuse disorder that had the effect of prolonging the adjustment disorder, which had persisted for more than six months. In his third report, Dr Bisht reviewed the clinical notes of the treating general practitioner and formed the view that the substance abuse disorder was a pre-existing condition and was the cause of the respondent’s ongoing incapacity, and thus the respondent’s condition was no longer related to the injury with the appellant.
[12] Reply, pp 323–331.
[13] Reply, pp 332–338.
[14] Reply, pp 339–347.
The respondent was referred by his treating general practitioner, Dr Fadi Rassam, to Dr Hong, psychiatrist. Dr Hong reported to Dr Rassam on 9 April 2021, providing a diagnosis of complex PTSD which had been aggravated by “work stress”, as well as substance misuse.[15]
[15] ARD, p 164.
The clinical notes from the Cecil Hills Medical Centre were also in evidence, which recorded treatment for mental health issues in 2019 (prior to commencement with the appellant in July 2019) requiring prescribed medication and included a referral to a psychiatrist.[16]
[16] ARD, pp 294–312.
In her report dated 22 October 2021, Dr Rastogi diagnosed an adjustment disorder with anxiety in the context of partially remitted PTSD, as well as alcohol abuse disorder and exacerbation of a substance abuse disorder.[17] Dr Rastogi was of the view that the prognosis was limited because the mood disorder was magnified by substance abuse disorder and by the exacerbation of his co-morbidities, resulting in the respondent having no capacity for work.
[17] ARD, pp 147–157.
Dr Rastogi provided a further opinion in a supplementary report dated 10 March 2022 in which she reviewed the report of Dr Bisht dated 4 January 2022, the report of Dr Hong and a statement from the respondent responding to the report of Dr Bisht.[18] Dr Rastogi agreed with the diagnosis of adjustment disorder in the context of the respondent’s psychological vulnerabilities and co-morbid disorders. She opined, however, that the symptoms of the adjustment disorder had not resolved, and the adjustment disorder was chronic and caused an aggravation of the respondent’s substance abuse.
[18] Application to Admit Late Documents dated 28 March 2022, pp 1–3.

The argument put forward by the respondent, which was accepted by the Member, was that he could plead his case as he wished. This proposition is plainly correct, however, it does not address the substantive issue raised by the appellant that a third party may be liable for payment of compensation to the respondent. The recollections of both parties indicate that the Member did not engage with the appellant’s submission that there was an arguable basis upon which Target should be joined to the proceedings.

It is apparent from the above that the issue in dispute which the Member was required to ultimately determine at or following the arbitration was whether the respondent had recovered from the accepted exacerbation or aggravation of his pre-existing disorders. The appellant’s case was identified in the pleadings and in the submissions to the Member at the telephone conference. That is, that the respondent’s ongoing incapacity and need for treatment resulted from the pre-existing conditions which were attributable to injuries with a former employer who may be liable to pay compensation to the respondent.

Conclusion

It is therefore apparent that the Member failed to take into account a matter relevant to the issue of whether Target should be joined to the proceedings and thus fell into the type of error identified by Heydon JA in Micallef. The Member’s determination is therefore revoked.

CONSIDERATION OF THE JOINDER APPLICATION

Section 352(5) of the 1998 Act provides that an appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. Having identified error on the part of the Member, it is open for me to correct that error.
Rule 62 of the 2021 rules relevantly provides:
“62    Orders concerning joinder
(1)     An appropriate decision-maker for applicable proceedings may order that a person be joined as a party to the proceedings if the appropriate decision-maker considers that the person should be joined as a party.
(2)     …
(3)     An appropriate decision-maker for applicable proceedings may, for the purposes of an order made under subrule (1) or (2) (the principal order), make other orders the appropriate decision-maker considers necessary to facilitate the operation of the principal order, including orders for the amendment of documents lodged in the proceedings and orders for service.
(4)     An appropriate decision-maker may make an order under this rule of their own motion or on the application of the person concerned or a party.
(5)     …”.
The respondent submits that he made a forensic decision to proceed only against the appellant, which he says was based upon his history of long-term employment, his injury, and the available medical evidence and thus the decision to proceed on that basis was open to him. The respondent provides a detailed summary of the opinion of Dr Rastogi and submits that the respondent’s claim is that he is unfit for work and requires medical treatment because of the events that occurred in the course of his employment with the appellant. The respondent says that he does not rely on any evidence that points to Target being the cause of his condition and asserts that it is neither “necessary or desirable” to join Target “for the proper and effective determination of the dispute.”[19]
[19] Respondent’s submissions, [31].
The respondent describes the rationale that it is up to him how he chooses to prosecute his claim as a logical and cogent legal principle and submits that the Member was correct in exercising her discretion to reject the application made by the appellant.
The respondent contends that, contrary to the appellant’s submission, if Target were joined to the proceedings, the procedural matters that followed and the need for further evidence would result in extensive delay and may have the result that the respondent would need to discontinue these proceedings.
It is, however, relevant that the respondent’s submission that Dr Bisht’s report dated 31 March 2022 was the only evidence which addressed the issue in dispute in the appellant’s favour, was an inaccurate submission. Additionally, whether the Member would “prefer” the opinion of one doctor over another in the ultimate decision about the issue is not a determination that is required to be addressed in order to consider the application for joinder. That is a matter that should be considered when the issue for determination is ultimately decided at or following an arbitration.
The opinions of Dr Bisht are discussed at [43] above. Dr Bisht described the respondent’s injury with the appellant as an aggravation of a pre-existing condition and considered that the aggravation was continuing and, in his report of 25 May 2021, additionally noted the onset of substance abuse disorder which he considered had the effect of prolonging the adjustment disorder. Following a review of the clinical notes recorded by the general practitioner, Dr Bisht reported that he was of the view that the substance abuse disorder was a pre-existing condition, was the cause of the respondent’s ongoing incapacity, and as a consequence the respondent’s incapacity was no longer related to the injury with the appellant.
The evidence of Dr Hong, the Cecil Hills Medical Centre and Dr Rastogi is also discussed above at [44]–[47]. Dr Hong diagnosed complex PTSD which had been aggravated by “work stress” and substance misuse.[20] The Cecil Hills Medical Centre notes recorded treatment for mental health issues in 2019 before the respondent commenced working with the appellant in July 2019, and those issues required the prescription of medication and included a referral to a psychiatrist.[21]
[20] ARD, p 164.
[21] ARD, pp 294–312.
Dr Rastogi diagnosed an adjustment disorder with anxiety in the context of partially remitted PTSD, as well as alcohol abuse disorder and exacerbation of a substance abuse disorder.[22] Dr Rastogi’s view was that the mood disorder was magnified by substance abuse disorder which exacerbated the respondent’s co-morbidities and caused him to have no capacity for work.
[22] ARD, pp 147–157.
In a further report, Dr Rastogi reviewed the report of Dr Bisht dated 4 January 2022, the report of Dr Hong and a statement from the respondent responding to the report of Dr Bisht.[23] She agreed with the diagnosis of adjustment disorder in the context of the respondent’s psychological vulnerabilities and co-morbid disorders. She was of the view that the symptoms of the adjustment disorder had not resolved, the adjustment disorder was chronic and caused an aggravation of the respondent’s substance abuse.
[23] Application to Admit Late Documents dated 28 March 2022, pp 1– 3.
It is not appropriate to consider the probative value of the medical evidence pointed to by both parties. This overview of the evidence, however, shows that there is medical opinion both for and against the position taken by the parties as to whether the respondent’s ongoing symptoms and incapacity are:
(a) referrable to the aggravation occurring in the employ of the appellant, or
(b) attributable to events that occurred prior to that employment, particularly the traumatic events in the employ of Target.
If, after a consideration of that evidence, the second proposition is accepted, it would be procedurally unfair to Target to have not had the opportunity to be heard on the issue. Section 42 of the 2020 Act requires that the Commission facilitate the just, quick and cost effective resolution of the real issues in the proceedings. It is difficult to embrace what findings a member might make in respect of where the liability falls in the absence of having heard from a potentially liable entity. While joining Target to these proceedings is likely to delay the matter for a period, the delay is outweighed by the notion of ensuring procedural fairness. It is also arguably more cost effective than the appellant bringing separate proceedings to have the potential of apportionment of liability determined.

Conclusion

I am of the view that it is in the interests of justice that Target be joined to these proceedings. Whether it is joined as a further respondent or as a third party is a matter for submissions and for the primary decision maker. The matter is therefore remitted to another Member to make the appropriate orders joining Target to these proceedings in accordance with r 62 of the 2021 rules and any other orders or directions that the Member considers necessary so that the matter can proceed to finalisation before that Member.

DECISION

The appellant’s application for leave to appeal an interlocutory order pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) is granted.
The appellant’s application to adduce additional evidence pursuant to s 352(6) of the 1998 Act is refused.
The Member’s decision to refuse the application to join Target Australia Pty Ltd is revoked.
The matter is remitted to another Member to:
(a) make the appropriate order joining Target Australia Pty Ltd to these proceedings in accordance with r 62 of the 2021 rules;
(b) make such further orders and directions as the Member considers appropriate, and
(c) proceed to determine the matter.

Elizabeth Wood
Deputy President

14 November 2022