Audino v WA Country Health Service - Wheatbelt - [2013] WADC 46

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: AUDINO -v- WA COUNTRY HEALTH SERVICE - WHEATBELT [2013] WADC 46

CORAM: STAVRIANOU DCJ

HEARD: 8 FEBRUARY 2013

DELIVERED : 5 APRIL 2013

FILE NO/S: APP 81 of 2012

BETWEEN: FRANCA AUDINO
Appellant
AND
WA COUNTRY HEALTH SERVICE - WHEATBELT
Respondent

ON APPEAL FROM:
Jurisdiction              :  WORKERS' COMPENSATION ARBITRATION SERVICE (WA)
Coram  :ARBITRATOR MELVILLE
File No  :A 1250 of 2012

Catchwords:

Workers' compensation - Appeal from Workers' Compensation Arbitration Service - Leave to appeal - Whether appeal 'involves a question of law'

Procedural fairness - Whether Arbitrator denied appellant procedural fairness - Whether Arbitrator ought to have made a finding on an issue not put to appellant - Application of the rule in Browne v Dunn in arbitration proceedings - Reasons for decision - Whether Arbitrator gave adequate reasons for decision

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA), s 5, s 18, s 177, s 178, s 182ZO, s 213(4), s 247

Result:

Appeal allowed
Arbitrator's decision quashed

Representation:

Counsel:

Appellant: Mr A Gunasekera
Respondent: Mr R L Hooker

Solicitors:

Appellant: Workers' Compensation Legal Services
Respondent: CCS Insurance Law

Case(s) referred to in judgment(s):

Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1
Apache Northwest Pty Ltd v Agostini [No 2] [2009] WASCA 231
Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17
Australian Broadcasting Tribunal v Bond (Bond Media Case) [1990] HCA 33; (1990) 170 CLR 321, 353
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Brown v Dunne (1893) 6 R 67
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Marelic v Comcare [1993] FCA 599; (1993) 47 FCR 437
Mijatovic v Legal Practitioners Complaints Committee (2008) 37 WAR 149
Mount Lawley Pty Ltd v Planning Commission (WA) [2004] WASCA 149; (2004) 29 WAR 273
National Companies & Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296
Oldfield Knott Architects Pty Ltd v Ortiz Investments Pty Ltd [2000] WASCA 255
Osland v Secretary, the Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Parker v Comptroller-General of Customs [2009] HCA 7; (2009) 252 ALR 619
Pollock v Wellington (1996) 15 WAR 1
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219
Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Velez Pty Ltd v Tudor [2011] WASCA 218
XCO Pty Ltd v Federal Commissioner of Taxation [1971] HCA 37; (1971) 124 CLR 343

STAVRIANOU DCJ:

Introduction

From December 2006 Franca Audino has been employed by WA Country Health Service – Wheatbelt (WACHS) as a cleaner. She alleges that on 17 July 2011 she suffered a left inguinal hernia in the course of her employment.
Mrs Audino's claim, pursuant to the Workers' Compensation and Injury Management Act 1981 (the Act) for compensation, was disputed by WACHS.
The claim proceeded to arbitration before the registrar on 16 and 17 August 2012
The arbitrator dismissed Mrs Audino's claim on the basis that he was not satisfied that she suffered an injury arising out of or in the course of her employment.
Mrs Audino has appealed the decision.

The grounds of appeal

The amended grounds of appeal are as follows:
1.The Registrar erred in law by failing to take into consideration relevant evidence when finding that the Appellant/worker had informed her employer that 'the incident occurred at 8.00 am'.
2.The Registrar erred in law by denying the Appellant/worker procedural fairness in deciding the issue of credibility, and thus the Application, for reasons not raised with the Appellant/worker, namely: (a) 'that she sought to have Ms Frasier, who was not a witness to the incident, be a witness to the incident'; and (b) the Appellant/worker 'sought to have another witness in Ms Jakubow conceal the fact that she had asked Ms Jakubow not to say anything about her saying she had reported the incident to Ms Jakubow'.
3.The Registrar erred in law by failing to decide the submission that 'normal every day activities' 'must also include work' duties; or alternatively, decided that issue without adequate reasons.
4.The Registrar erred in law when finding that 'no claim for compensation in respect of this injury was made until several months later' by failing to take into consideration a relevant consideration, namely, section 178 of the Act.
5.The Registrar erred in law by denying the Appellant/worker procedural fairness by finding that 'the development of the hernia could have quite plausibly occurred at a later time and in a different location' without giving the worker notice of such a possibility.
6.The Registrar erred in law by failing to afford the parties procedural fairness by considering the absence 'of a prescribed workers' compensation medical certificate' and/or raising this in his decision as a point of concern without first raising it with the parties.
7.The Registrar erred in law by wrongly disregarding the evidence of Drs Kennedy and Chang, or alternatively, disregarded their evidence without providing sufficient reasons for decision.
Whilst these are a number of grounds of appeal the principle issue was whether the arbitrator in dealing with Mrs Audino's application, denied her procedural fairness. In particular the focus was upon the arbitrator's finding that Mrs Audino 'was willing to deceive WACHS regarding the circumstances of the hernia'.

Relevant legislative provisions

The right to compensation

By s 18 of the Act if an injury of a worker occurs, the employer shall be liable to pay compensation in accordance with sch 1.
Relevantly, s 5(a) of the Act defines injury to include a personal injury by accident arising out of or in the course of the employment, or whilst the worker is acting under the employer's instructions.
Section 178 makes provision in relation to the circumstances in which a claim for compensation is not maintainable. It reads:
(1)Proceedings for the recovery under this Act of compensation for an injury are not maintainable unless -
(a)a notice of the occurrence of the injury has been given under section 179 in writing containing substantially the information required by subsection (2) as soon as practicable after the occurrence; and
(b)the claim for compensation with respect to such injury has been made within 12 months from the occurrence of the injury or, in case of death, within 12 months from the time of death,
but -
(c)the want of or any defect or inaccuracy in such notice is not a bar to the maintenance of such proceedings, if it is found in the proceedings for settling the claim that the employer is not, or would not, if a notice or an amended notice were then given and the hearing postponed, be prejudiced in defending the proceedings by the want, defect or inaccuracy, or that such want, defect or inaccuracy was occasioned by mistake, absence from the State, or other reasonable cause; and
(d)the failure to make a claim within the period mentioned in paragraph (b) is not a bar to the maintenance of such proceedings, if it is shown that the employer has not been prejudiced in defending the proceedings by such failure, or if it is found that the failure was occasioned by mistake, absence from the State, or other reasonable cause.
(2A) For the purposes of showing that the employer has not been prejudiced in defending the proceedings for subsection (1)(d), the period from the occurrence of the injury, or from the time of death, to the time the claim is made is to be taken into account.
(2) Notice in respect of an injury under this Act is to state -
(a)the name and address of the person injured; and
(b)in ordinary language the cause of the injury; and
(c)the date and place at which the injury occurred,
and is to include such other information, if any, as may be prescribed by the regulations.

The application and procedure before the arbitrator

Part X1 of the Act deals with dispute resolution. Subject to the Act, arbitrators have exclusive jurisdiction to examine, hear and determine all disputes (s 176(2)). A dispute relevantly means a dispute in connection with a claim for compensation, or the liability to pay compensation, under the Act (s 176).
Section 177 of the Act deals with the object of the dispute resolution part of the Act and provides:
The object of this Part is to provide a fair and cost effective system for the resolution of disputes under this Act that -
(a)is timely; and
(b)is accessible, approachable and professional; and
(c)minimises costs to parties to disputes; and
(d)in the case of conciliation, leads to final and appropriate agreements between parties in relation to disputes; and
(e)in the case of arbitration, enables disputes not resolved by conciliation to be determined according to their substantial merits with as little formality and technicality as practicable.
(2)Dispute resolution authorities and officers of WorkCover WA mentioned in section 181(2)(b)(ii) or 182ZO(2)(b)(ii) are to have regard to the object of this Part when they perform their functions.
Section 182ZO of the Act establishes the Workers' Compensation Arbitration Service.
Section 188 of the Act makes provision for practice and procedure, generally and reads:
(1)An arbitrator is bound by rules of natural justice except to the extent that this Act authorises, whether expressly or by implication, a departure from those rules.
(2)The Evidence Act 1906 does not apply to proceedings before an arbitrator and an arbitrator -
(a)is not bound by the rules of evidence or any practice or procedure applicable to courts of record, except to the extent that the arbitration rules make them apply; and
(b)is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3)An arbitrator may inform himself on any matter as the arbitrator thinks fit.
(4)An arbitrator may -
(a)receive in evidence any transcript of evidence in proceedings before a court or other person or body acting judicially and draw any conclusion of fact from the transcript; and
(b)adopt, as the arbitrator thinks fit, any finding, decision, or judgment of a court or other person or body acting judicially that is relevant to the proceeding.
(5)To the extent that the practice and procedure of an arbitrator are not prescribed under this Act, they are to be as the arbitrator determines.
Section 213 of the act deals with the form and contents of an arbitrator's reasons for decision and provides:
(1)A decision of an arbitrator is to be given in writing to a party to a proceeding if -
(a)the arbitration rules state that the decision is to be given in writing to that party; or
(b)within 14 days after the arbitrator makes the decision, the party requests that the decision be given in writing.
(2)An arbitrator's decision in writing is to include information as to appeal rights that may be available to the parties under this Act.
(3)The reasons for a decision of an arbitrator are to be given in writing to a party to a proceeding if -
(a)the arbitration rules state that the reasons are to be given in writing to that party; or
(b)within 14 days after the arbitrator makes the decision, the party requests that the reasons for the decision be given in writing.
(4)The reasons for an arbitrator's decision -
(a)need only identify the facts that the arbitrator has accepted in coming to the decision and give the reasons for doing so; and
(b)need only identify the law that the arbitrator has applied in coming to the decision and give the reasons for doing so; and
(c)need not canvass all the evidence given in the case; and
(d)need not canvass all the factual and legal arguments or issues arising in the case.
(5)A written transcript of the part of the proceeding in which a decision is given orally or reasons are given orally is sufficient compliance with the requirement for the decision or reasons to be in writing.
(6)The fact that a decision is, or reasons are, given orally or in accordance with subsection (4) or (5) is not of itself a ground for reversing or modifying the decision on an appeal.
The Workers' Compensation and Injury Management Arbitration Rules 2011 provide the framework within which an arbitration proceeds pursuant to the Act.
The rules are a detailed and comprehensive procedural guide.
Matters dealt with by the Rules include the form of document for the commencement and reply to the arbitration(pt 4), the service of documents (pt 3),the material to be lodged and served with the claim and the reply (pt 4),disclosure of documents and information (pt 6), the conduct of proceedings before the arbitrator including discontinuance of applications, consent orders and adjournments (pt 5), representation before the arbitrator (pt 7) witnesses giving evidence and providing statements (pt 9) and costs (pt 10).
Rule 27 deals specifically with the contents of any reply and reads:
(1)A party who has been served with an application for arbitration must lodge a reply to the application within 14 days after the day on which the application is served on the party.
(2)The reply must -
(a)state concisely, but with full particularity -
(i)what parts of the application, if any, are admitted by the party; and
(ii)what parts of the application, if any, are disputed by the party;
and
(b)give full particulars of the grounds on which the relevant parts of the application are disputed by the party and the issues for determination by the arbitrator.

Leave to Appeal-Question of Law

Section 247 of the Act enables a party to appeal an arbitrator's decision to the District Court. Leave to appeal is required and a court is not to grant leave unless a question of law is involved.
An appeal 'involves' a question of law if the court, tribunal or statutory decision‑maker whose decision is under appeal has made an error of law, or an error of mixed law and fact: BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [3]; Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17 [20].
A decision will not 'involve' an error of law 'unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different': Australian Broadcasting Tribunal v Bond (Bond Media Case) [1990] HCA 33; (1990) 170 CLR 321, 353.
In Atanasoska Buss JA said [21]:
If a ground of appeal by a party, properly analysed, does not involve a question of law, linguistic gymnastics in the formulation of the ground cannot alter the position. A ground that asserts a decision is against the evidence and the weight of the evidence does not raise an issue involving a question of law. A court, tribunal or statutory decision-maker does not make an error of law merely because the court, tribunal or decision-maker finds facts wrongly or upon a doubtful basis. Generally see Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [53] - [55] and the cases there cited.
An appeal 'on a question of law' is not an appeal by way of rehearing; it is in the nature of judicial review, which challenges the legal correctness of what the lower court has done. See Osland v Secretary, the Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320 [18].
Once it has been established that a ground involves a question of law, it is unnecessary to consider whether additional questions of law arise, as the whole decision of the arbitrator, and not merely the question of law identified, is open to review: XCO Pty Ltd v Federal Commissioner of Taxation [1971] HCA 37 [10]; (1971) 124 CLR 343, 349; PacificIndustrial Co v Jakovljevic [2008] WASCA 60 [18].
If a question of law is involved and leave to appeal has been granted, the District Court must undertake a 'real review' of the application, but on the materials before the arbitrator. It is not a hearing de novo. The appellant must establish some error, either of fact, law or logic before the court may disturb the arbitrator's findings: PacificIndustrial Co v Jakovljevic [20] and [26].

Background to the claim and the hearing before the arbitrator

Mrs Audino's application relevantly alleged:
1.The Applicant was born on 15 March 1966 and is presently 46 years old.
2.The Applicant suffered an injury on Sunday 17 July 2010 ('the injury').
3.The injury occurred when the Applicant was 'hanging curtains'.
4.The Applicant was in the course of employment with the Respondent at the material time.
5.The Applicant was working as a Cleaner.
6.The Applicant completed a Form 2B Claim Form on 10 October 2011.
7.The Applicant obtained a First Medical Certificate on 5 October 2011.
8.The relevant insurer for the injury was RiskCover.
9.On 2 February 2012 RiskCover advised that: 'liability is disputed'.
WACHS filed a reply dated 12 July 2012 by which it disputed Mrs Audino's claim. However it did admit and plead that:
1.She was a 'worker' as defined by the Act;
2.At all material times she was employed as a cleaner; and
3.She had submitted a claim with respect to a groin injury on or about 10 October 2011.
In annexure A to the reply WACHS denied that Mrs Audino was entitled to the relief claimed or any relief on the basis that she had not sustained an injury as defined by the Act. It also contended that Mrs Audino suffered a non work‑related condition, or a condition which her employment was not a significant contribution.
The reply further pleaded that WACHS would rely upon statements of evidence provided by three of its representatives:
1.Fay Susan Hinsley dated 21 May 2012;
2.Mary Ann Jakubow dated 21 May 2012; and
3.Marilyn Rose Frasier dated 21 May 2012.
Mrs Audino filed a witness statement dated 16 May 2012. She also filed a supplementary witness statement dated 29 June 2012. The supplementary statement contained paragraphs dealing with:
1.The medical report of Dr Chang dated 26 October 2011;
2.The statement of Ms Hinsley;
3.A file note of Ms Hinsley dated 16 November 2011;
4.The statement of Ms Jakubow dated 21 May 2012; and
5.The statement of Ms Frasier dated 21 May 2012.
WACHS delivered a written outline of submissions dated 8 August 2012 which reads:
1.On Monday 10 October 2011 the applicant submitted a Form 2B alleging that she had sustained an injury during the course of her employment on 17 July 2011.
2.The respondent disputes liability for the applicant's claim and contends the applicant suffers from a non work related condition or a condition to which her employment was not a significant contributing factor.
3.The respondent submits that the applicant failed to make any report of the alleged injury until 17 October 2011 at which time she suggested the injury occurred at 8.00 am when she was taking down curtains or walking up a ladder.
4.Subsequent to confirmation by her superiors that she would not have been attending to the task of the curtains at 8.00 am she subsequently altered the circumstances of the alleged event to a claim that she became aware of the pain when walking towards her trolley and alleged that it was the pushing of the trolley that caused the hernia.
5.The respondent denies that the applicant is entitled to the relief claimed or any relief on the basis that the applicant has not sustained an injury as defined by the Act.
6.The respondent relies on the opinion of general surgeon Mr M Jayasundera whose opinion in relation to the issue of causation was 'as there was no clear history of developing pain and swelling immediately after a particular exertion, I am unable to determine if a particular activity caused the hernia. As it was a small indirect inguinal hernia sac, this is essentially a pre‑existing weakness, and may have slowly developed with normal everyday activities'.
7.The applicant relies on the opinion of her general practitioner Dr Chang who says only that there is a 'probability that the hernia was work related'. Dr Chang bases his opinion (on) the history provided by the applicant and his understanding is that the applicant had documented that she felt pain after cleaning a patient's room. The respondent submits the history relied on by Dr Chang in that the pain was documented is incorrect and the applicant made no mention of this until almost three months after the alleged incident.
8.The respondent takes issue with the applicant's credibility and takes issue with the history she has provided to the various medical practitioners.
9.The respondent takes issue with the travel expenses claimed and submits that as the applicant resides in Northam it is inappropriate for her to travel from Northam to Mirrabooka to attend on a general practitioner. If it is determined that the applicant has a valid entitlement under the Act the respondent submits that travel expenses should be limited to the attendances on a general practitioner in Northam other than for attendances for specialist treatment as required in Perth.

The hearing before the arbitrator

At the hearing before the arbitrator Mrs Audino was the only witness called in her case. However, her counsel did tender as exhibits medical reports, certificates and test results, witness statements and pay slips. WACHS tendered as exhibits, medical reports, Ms Hinsley's file note of 16 November 2011 and the witness statements of Ms Hinsley, Ms Jakubow and Ms Fraiser.
WACHS called Ms Hinsley, Ms Jakubow and Ms Frasier to give oral evidence.
In opening counsel for Mrs Audino submitted that 'the critical issues in this case relate to the fact that there was a delay in reporting or claiming a workplace injury'. Counsel explained that the reason why there was a delay was because Mrs Audino did not know what she was experiencing in the sense of the nature of her injury. Reference was made to the cause of the hernia being substantially a matter for medical evidence.
The evidence of Mrs Audino as to the circumstances of the incident is contained in pars 51 to 59 of her witness statement dated 16 May 2012:
51.On 17 July 2011, at around lunch time, before going to lunch, and after doing a normal cleaning job, I went to walk towards my cleaning trolley.
52.I had just cleaned a patient's room.
53.This involved:
(a)cleaning and scrubbing the toilet and bathroom basin;
(b)cleaning and scrubbing the bathroom walls;
(c)dusting/wiping surfaces;
(d)changing the bins (2 in each room);
(e)top-up the paper towels in the room and bathroom;
(f)check the soap dispenser in both rooms;
(g)clean the basin in the patients room;
(h)remove any dirty linen; and
(i)mop all floors in both rooms.
54.As I was walking towards my cleaning trolley, I felt a sharp pain in my left groin extending into my inner thigh.
55.It felt like a pulling sensation.
56.It was a heaviness in my lower inguinal region.
57.I felt like my uterus just dropped.
58.I don't know how else to describe it.
59.I had never experienced this kind of pain before.
In the course of Mrs Audino's evidence-in-chief her two witness statements were tendered as well as a written claim form dated 10 October 2011. Mrs Audino gave evidence that on 17 July 2011 she thought she was suffering from what she described in evidence as 'female problems'. For that reason there had been no incident report completed on that day. On 27 July 2011 she attended her general practitioner, scans had been arranged and there was no diagnosis of a hernia. On 27 August 2011 Mrs Audino attended Sir Charles Gairdner Hospital where following investigations a diagnosis of an inguinal hernia was made. There was no attempt in evidence‑in‑chief to adduce evidence from Mrs Audino in relation to the witness statements of Ms Hinsley, Ms Jakubow and Ms Frasier.
Mrs Audino's cross‑examination began with questions as to her attendance on medical practitioners subsequent to 17 July 2011 and her awareness of the requirement to complete an incident report. The cross‑examination then focused upon her attendance at hospital on 27 August 2011 and was as follows:
MS LANGFIELD: You were told at the hospital that they thought you had a hernia, and your evidence is that you told the hospital that it had happened at work, so if you were told by the hospital on 27 August that you had a hernia, and you believed it happened at work, why didn't you tell your employer about it in August?
APPLICANT: When ‑ no. In August the 27th, I – because I went – the – on – hang on. Sir Charles Gairdner said to me, 'You have to wait for a letter from someone to see you'. Because I went on Saturday, and – and the doctor told me that unfortunately, on Saturdays, the machines are shut. There's no staff here, and we can't go further, so we'll send you a letter by mail – to organise a day for someone to see you to confirm if you got a hernia.
MS LANGFIELD: By my question is, why didn't you tell somebody at work after you'd been to the hospital that you thought you'd hurt yourself at work?
APPLICANT: I did tell at work after I saw – on 27 August, at the Sir Charles Gairdner Hospital, I – you know, I had that day off, then I went back to work and did my normal duties, and I explained it to my work mates – guess what, the people that were rostered on, I thought I had female problems, and now they said I've got a hernia. I told that to my work mates that were rostered on as days went by.
MS LANGFIELD: How long have you worked at the Northam Hospital?
APPLICANT: Since I've – December 2006.
MS LANGFIELD: So and you're aware of the fact that if you have hurt yourself at work, you're supposed to fill in an incident report?
APPLICANT: I've got to fill in an incident report. But on that day, 100 per cent sure I believe myself it was female problems cos I was expecting my periods to come any day.
MS LANGFIELD: Yes, and that's 17 July, but after you'd been to the hospital and you told them – you say that you told them that it had happened at work, why didn't you fill in an incident report then?
APPLICANT: Because I wasn't sure. I didn't know what to believe.
MS LANGFIELD: Okay. Now ‑ ‑ ‑
ARBITRATOR: Just a moment, thank you. I just need to catch up.
APPLICANT: Now, I didn't fill in the incident report after I went to Sir Charles Gairdner Hospital because I had to wait for a letter through the mail to double check, so I wasn't sure, so I wanted to wait to see – for someone to see me through Sir Charles Gairdner.
ARBITRATOR: Ready when you are, Ms Langfield.
MS LANGFIELD: Right. And then after you'd been to Sir Charles Gairdner Hospital, you didn't get the letter for a while. Is that correct?
APPLICANT: Yes, they told me that I was sent it by mail, and I waited for around a week. After about a week, I rang at the hospital on my lunch break, and I had a direct phone number. I spoke to a young lady and – and – and she told me that the letter's on its way. And I said to her, 'Do you know what day my appointment will be to see someone about my hernia?' and she said, 'On 14 December'. And I said to her on the phone, '14 December, that's too long', and she said, 'Unfortunately it's all booked out, but if there's a cancellation I'll let you know'.
MS LANGFIELD: Right, so ‑ ‑ ‑
APPLICANT: I couldn't wait for four months.
MS LANGFIELD: So that's – that's when Dr Stevens sent you to Mr Jayasundra, is that correct? When you realised you had to wait so long?
APPLICANT: No, no, no. I didn't go straight to Dr Stevens from Sir Charles Gairdner Hospital.
MS LANGFIELD: No, but after a short period, when – when you found out that you have to wait for Sir Charles Gairdner till December, that's when you went to see Dr Stevens?
APPLICANT: No, no. After – after when I found out that I had to do – see someone in December, which was – I waited a couple more – couple – after that phone call on 6 September, I was working, I had pains. I went and saw a doctor at Northam Regional Hospital; Dr Koi (?)
MS LANGFIELD: Right.
APPLICANT: He was a relief doctor.
MS LANGFIELD: What did he do?
APPLICANT: And I told him that I had been to Sir Charles Gairdner and they – and I showed him – I told him what he said. He gave me a referral on the spot. I went and had ultrasound there at Northam Regional Hospital.
Mrs Audino was cross‑examined in relation to Ms Hinsley's proposed evidence. Relevantly, the following exchange occurred:
MS LANGFIELD: Did you tell her that you thought it had happened at about 8.30 in the morning?
APPLICANT: Wasn't 8.30. I went and saw Fay around 8 o'clock.
MS LANGFIELD: No, on. My question was did you tell Ms Hinsley that you thought you'd first got the pain at about 8.30 in the morning?
APPLICANT: No.
MS LANGFIELD: Well, Ms Hinsley says that that's what you told her, so you'd disagree with that, would you?
APPLICANT: Yes.
There was no cross‑examination of Ms Audino in relation to the statements of Ms Frasier or Ms Jakubow.
At the conclusion of Mrs Audino's evidence counsel closed her case. Counsel for WACHS in declining to make an opening address said to the arbitrator 'my preference will be just to outline the respondent's position all in one at the end, just refer to the medical evidence then'.
The treatment by each counsel of the evidence of Ms Fraiser and Ms Jakubow becomes of significance in the context of the credibility findings ultimately made by the arbitrator. Notwithstanding the absence of cross‑examination of Mrs Audino in relation to their proposed evidence there was no objection by Mrs Audino's counsel when it was sought to adduce their respective statements.
Marilyn Rose Frasier gave oral evidence. In her statement dated 21 May 2012 she noted she was not working on 17 July 2011. On 26 September 2011 Mrs Audino came to her requesting her to sign an incident report to say that she had hurt herself at work in July 2011. It was her evidence that she was not able to do this as a report had not been made to her regarding any incident.
Paragraphs 10, 11 and 12 of her statement read:
10.On 26 September 2011 at 11.30 am, Franca came and spoke with me and asked me to sign an incident report to say she had hurt herself at work in July 2011.
11.I was not able to do this as no report had been made to me on any incident occurring. I advised Franca to see Mary Jakubow as I assumed Mary, being the Leading Hand, would have had more input into what occurred.
12.Mary would be the person who would sign off an on an incident report. I explained to Franca that the incident report form would then be lodged and handled by the relevant parties, but the incident report form needed to be signed by the person who the incident had been reported to.
Ms Frasier was cross-examined in relation to her statement as follows:
MR GUNASEKERA: Okay. All right. Now, you say that, at paragraph 10 and 11 onwards ‑ ‑ ‑
MS FRASER [sic]: Mm hm.
MR GUNASEKERA: ‑ ‑ ‑ 'On 26 September, Franc came and spoke with me, and asked me to sign an incident report to say she had hurt herself at work in July 2011'.
MS FRASER [sic]: Mm hm.
MR GUNASEKERA: Can I just explore that with you? So she came to you with a completed document, did she?
MS FRASER [sic]: Spoke to me about – can I just have a look in my diary, because I actually did document these things?
MR GUNASEKERA: I'd prefer if we just work off your statement for the time being.
MS FRASER [sic]: Okay. Yep. Right.
MR GUNASEKERA: So it's paragraph 10 of your ‑ ‑ ‑
MS FRASER [sic]: Yep, paragraph 10.
MR GUNASEKERA: Yes. So, 'On 26 September ‑ ‑ ‑'
MS FRASER [sic]: Yes.
MR GUNASEKERA: ‑ ‑ ‑ 'Franca came and spoke with me and asked me to sign an incident report to say she had hurt herself at work in July 2011'. So I'm just asking you to cast your mind back to the 26th.
MS FRASER [sic]: Yes, yes.
MR GUNASEKERA: Working off what you can remember at the moment, did she come to you with a document or did she come to you and say, 'I would like a document to sign?'
MS FRASER [sic]: She came and asked me – she didn't have a document in her hand, no.
MR GUNASEKERA: Yes.
MS FRASER [sic]: But she did ask me if I would sign an incident report for her.
MR GUNASEKERA: Okay.
MS FRASER [sic]: But, no, she didn't have a document, and I know it was that date because my evidence in this statement was taken from my work diary.
MR GUNASEKERA: Okay. And you say, 'I was unable to do this as no report had been made to me on any incident occurring. I advised Franca to see Mary, as I assumed Mary, being the leading hand, would have had more input what had occurred'.
MS FRASER [sic]: Right.
MR GUNASEKERA: Did you ask Franca about what she was saying was the cause of her symptoms in July 2011 when you had this ‑ ‑ ‑
MS FRASER [sic]: No, my quote to Franca was I had not seen any incident, so therefore I felt I couldn't sign an incident report saying that anything had occurred.
MR GUNASEKERA: So did you understand Ms Audino's request to you to be – that she wanted you to be a witness? Or did she ‑ ‑ ‑
MS FRASER [sic]: Course [sic] I understood that because I couldn't be a witness; I hadn't seen her.
MR GUNASEKERA: Okay. I understand. I'm just asking you whether or not that's what you thought Ms Audino was asking you. Was she asking you for a form to complete or was she asking you to be a witness?
MS FRASER [sic]: No, she was not asking me for a form; she was asking me if I would sign a incident form for an incident that had occurred, and I'd explained to Franca at the time that I couldn't sign an incident report because I hadn't been witness to anything.
MR GUNASEKERA: Okay. But if – when you say 'couldn't sign an incident report', are you really saying be a witness to an incident report?
MS FRASER [sic]: I'm signing – I come sign – I'm saying I couldn't sign a incident report saying, which is what an incident report is, saying what had happened or what had occurred.
MR GUNASEKERA: But isn't it for the worker to sign the incident report? Isn't it for the worker to say ''I have suffered an injury" ‑ ‑ ‑
MS FRASER [sic]: Yes.
The re‑examination of Ms Fraiser dealt with the single issue of Mrs Audino's pre‑existing condition.
Whilst Mrs Audino was not cross‑examined in relation to Ms Frasier's account, she did provide an answer to parts of her statement in her supplementary statement. However, she relevantly did not deal with pars 10, 11 and 12 of Ms Frasier's statement.
Mary Ann Jakubow gave oral evidence. In her witness statement she outlined a conversation which she had with Mrs Audino on 16 September 2011. Relevantly pars 15 ‑ 20 read:
15.On 26^th September 2011, when I commenced on shift, I saw Franca standing out the front of Fay's office. I had not seen Franca for a while before this as she had been off for a period of time.
16.Franca asked to see me so I asked her to hold on and I would speak to Marilyn to see if I could use Fay's office. I was already aware at this time about Franca's hernia issue.
17.We then went to Fay's office and Franca and Franca [sic] told me that she had reported the incident on the day it happened, the 17 July 2011.
18.I told Fay she had not reported it as if she had I would have given her an incident report.
19.I got quite worked up over it as I told her the only thing she had ever told me about was the fibroy's.
20.Franca then asked me not to say anything about asking me to say she had reported the incident to me. I told Franca that if she had ever come to me I would have told her to put the reports in.
In examination-in-chief Ms Jakubow said:
MS LANGFIELD: (indistinct) – just refer to your statement.
MS JECABO [sic]: Okay. Yeah. This is about when Franca approached me near Fay's office and about signing an incident report, and how she said she reported it to me on 17 July, and I just her that this is not true. She didn't report me because I wasn't even at work on that day.
MS LANGFIELD: Mm hm. And then you say in that paragraph, she – you say that she said – she asked you not to mention asking her to say that she's reported it to you.
MS JECABO [sic]: Yeah, she did.
MS LANGFIELD: Could you clarify what was said then?
MS JECABO [sic]: She – and she said to me, 'Please don't say anything out of this room that I said anything to you'.
Ms Jakubow was cross‑examined in relation to her evidence as to what Mrs Audino had said to her. The examination continued:
MR GUNASEKERA: And what did you think that that request meant, Ms Jecabo? 'Please don't say anything outside of this room'. What do you think that Ms Audino was asking you to do?
MS JECABO [sic]: To sign a incident report that I didn't see anything of.
MR GUNASEKERA: That you didn't see anything or that you did see something?
MS JECABO [sic]: No, because I – no, I did not because I wasn't at work on 17 July.
MR GUNASEKERA: Okay. So what did you think Ms Audino was asking you to do?
MS JECABO [sic]: To sign an incident report, she hurt herself at work.
MR GUNASEKERA: Did she have this report with her when she was speaking?
MS JECABO [sic]: No.
MR GUNASEKERA: No. Did you – when was the first time that you learnt or became aware that Ms Audino was complaining of a hernia problem?
MS JECABO [sic]: Because I went off for a week while – on the July, I went off for a week, and then I come back. I know she wasn't saying anything then. It was later on. It wasn't even a hernia, she said. She said to me she had women's problems, and it was fibros, because why I remember fibros, because I had them and that's what I told her that I had – previously I've had fibros.
MR GUNASEKERA: Yes, but at paragraph 16 of your statement, you say, 'I was already aware at this time about Franca's hernia issue'. But I'm asking you to tell me when you became aware for the first time of the hernia issue.
MS JECABO [sic]: August?
MR GUNASEKERA: Round about August.
MS JECABO [sic]: Mm, yeah.
MR GUNASEKERA: Okay. And how did that knowledge come to you?
MS JECABO [sic]: Franca told me.
MR GUNASEKERA: Franca told you.
MS JECABO [sic]: Mm.
MR GUNASEKERA: Okay. Do you remember the conversation where she told you about that?
MS JECABO [sic]: No, I don't recall.
MR GUNASEKERA: No, okay. At paragraph 12, you say, 'I believe Franca consulted with a doctor at the hospital, and they said she had women's problems'. Which hospital is this?
MS JECABO [sic]: Northam Hospital.
MR GUNASEKERA: So WACHS?
MS JECABO [sic]: Yeah.
MR GUNASEKERA: 'It was recommended she consult with a proper women's doctor about her issues, which I believe she did'. Now, she says – Ms Audino says that the first time that she saw somebody at WACHS was no 6 September 2011.
MS JECABO [sic]: Well, I'm just going on what Franca's told me; that's all.
MR GUNASEKERA: Okay. So the evidence that you say, 'I believe Franca consulted with a doctor at the hospital', you're getting that from your conversation with Ms Audino.
MS JECABO [sic]: Yes.
MR GUNASEKERA: And no one else.
MS JECABO [sic]: No.
Mrs Audino in her supplementary statement dated 29 June 2012 said in relation to par 20 of Ms Jakubow's statement that she did 'not understand what Mary is trying to say'.
Fay Susan Hinsley outlined in her statement a conversation she had with Mrs Audino in relation to the alleged incident as follows:
34.In October 2011, Franca came and saw me and advised he her doctor had told her she needed a hernia operation. Franca believed it was caused through a work incident and then submitted her incident report.
35.When Franca submitted her incident report, I spoke to her as I needed some more information about how the incident had occurred. Franca said to me she could not identify how the incident occurred as she was doing cleaning duties and then had a sharp pain.
36.As we spoke more about the incident she said it occurred at about 8.00 am and said it could have been she was taking down the curtains or walking up the ladder. I was not able to ascertain how she had sustained her injury or what had occurred.
37.I had an issue when Franca said the incident might have occurred 8.00 am when the curtains were being changed as discharges don't occur until after 10.30 am at the earliest. Doctors do not commence until 9.00 am and then there is breakfast so the patients are not normally ready to leave before 10.30 am.
38.Franca then said it occurred when walking from one patient room to another, when there were no ladders or anything involved. Franca was then saying it could have happening when using the ladder or changing the curtains but there was no defined explanation for what and when the incident had occurred.
In closing submissions counsel for WACHS referred to Mrs Audino being well aware of the requirement to report the incident. Further it was submitted Mrs Audino was well aware of the fact she had a hernia well before the time she advised WACHS of it. Counsel summarised the evidence of the witnesses called and then submitted that 'the applicant's evidence couldn't be accepted, as we say that it's been tailored to fit the onset of the pain over a period of time'. However that submission was made in the context of submissions as to the medical evidence and the issue of causation. Whist there was reference by WACHS's counsel to the witnesses and their evidence there was no suggestion of any deceit on the part of Mrs Audino. Part of the closing submissions included:
Whist she asserts that she is able to establish on the balance of probability [sic] a hernia developed at work, we say that isn't true. The only thing that she has been able to establish is that she did have a hernia.

WACHS's case was that the arbitrator could not be satisfied on the evidence on the balance of probabilities of an injury arising out of or in the course of employment. There was no suggestion as the arbitrator found that Mrs Audino was willing to deceive WACHS regarding the circumstances of the hernia.
The acceptance or otherwise of Mrs Audino's evidence was specifically raised by the arbitrator in the course of submissions made by counsel for WACHS. The following exchange occurred:
'ARBITRATOR: And just in point form, can you just tell me again why, in point form or dot point form, if you like, why I ought not? Why you say I ought not accept it?
MS LANGFIELD: Well, we're saying that the applicant made no complaint of any pain at work until some months after the injury, and the hernia, on the medical evidence, is that it could have occurred – it's a result of a pre‑existing weakness …
ARBITRATOR: So it seems to me you're saying two things then. (a) I can't find in her favour unless I accept or have sufficient faith in her explanation of what happened, and (b) even if I do, there's still the question of, even if I accept her explanation and history, I can't find on that evidence there was an injury.
MS LANGFIELD: That's right, sir.'
Mrs Jakubow's evidence was raised by the arbitrator with counsel for Mrs Audino in closing submissions in the following way:
ARBITRATOR: Okay. Do you want to make any submissions on what inferences, if any, I can draw if I accept the evidence of Jacobson (sic) that she was asked by your client not to say anything out of this room after she'd asked Jacobson to say that she the worker had reported the incident to her?
MR GUNASEKERA: The inferences. I think the first thing to mention, sir, is I think that, in the supplementary witness statement, a response is given to that evidence by the worker. At the end of the day, it is not --- I'm not sure where it takes us, with respect. Yes, I don't know what can emerge from that, particularly when, sir, there was no cross‑examination of the worker in relation to that. I suppose this is one of the things that I think needs to be discussed when we talk about the scheme and reliance on witness statements. The witness statement was filed of Jacobson [sic] in those terms. We endeavour to respond to it, but in cross‑examination, it was never explored with the worker.
ARBITRATOR: Okay.
MR GUNASEKERA: Yes. And I might say, sir, just on that, there was also no cross‑examination of the worker as to a non‑work cause. No forensic investigative discussion as to what the worker was doing, say, on 16 July. You know, what the worker's home duties involve, how much time she'd spend in the garden. None of that was taken up by the respondent in cross.
The arbitrator did not raise any other issue concerning Mrs Audino's credibility in the course of closing submissions by counsel for Mrs Audino.

The arbitrator's reasons for decision

The arbitrator identified the issue he had to decide as being whether Mrs Audino had sustained an injury as defined in the Act. That was he said the only issue raised by the reply. To be successful Mrs Audino needed to prove she sustained such an injury.
In his written reasons dated 19 September 2012 the arbitrator noted there existed a conflict between the witnesses in respect of several areas of Mrs Audino's testimony. The arbitrator identified the conflict between Ms Hinsley's testimony and that of Mrs Audino concerning the report as to the time of the alleged incident.
The arbitrator observed that Ms Hinsley said Mrs Audino said she had suffered the injury at about 8.00 am. Mrs Audino denied that to be the case. Her evidence was the incident occurred closer to lunch time.
The arbitrator found that the evidence of Ms Hinsley on the issue was more reliable.
The arbitrator accepted the evidence of Ms Frasier and Ms Jakubow in relation to their respective dealings with Mrs Audino concerning the alleged incident. He found that Mrs Audino had sought to have Ms Frasier, who was not a witness to the incident, be a witness to the incident and to have Ms Jakubow conceal the fact that she had asked Ms Jakubow not to say anything about her saying she had reported the incident to Ms Jakubow.
The arbitrator concluded that the three credibility findings he had made concerning the evidence of Ms Hinsley, Ms Fraiser and Ms Jakubow impacted on Mrs Audino's credibility and 'undermined [his] confidence in her testimony'.
The arbitrator after outlining his findings in relation to the evidence of Ms Hinsley, Ms Frasier and Ms Jakubow stated:
42.Accordingly, I am left with these findings of fact that impact on the applicant's credibility; namely, she said the incident occurred at 8.00 am when her sworn evidence was that it occurred near lunch time, that she had sought to have Ms Frasier, who was not a witness to the incident, be a witness to the incident, and sought to have another witness in Ms Jakubow conceal the fact that she had asked Ms Jakubow not to say anything about her saying she had reported the incident to Ms Jakubow.
43.In my view, these three matters lead me to the conclusion that the applicant was willing to deceive the respondent regarding the circumstances of the hernia. This is not to say that the hernia was in fact not suffered on 17 July as the worker was walking towards the trolley. However, given her lack of candour in this regard, it undermines my confidence in her testimony.
44.Further, I find the applicant's evidence in cross‑examination as to why she did not report the hernia after its diagnosis at SCGH was not convincing. If the worker was sufficiently accepting of the diagnosis to allow herself to undergo surgery, it seems odd that she would then be thinking she needed confirmation of the diagnosis following surgery before lodging a claim on the employer. I find this explanation implausible and I am unable to accept it. Arriving at this point further undermines my confidence in her testimony, even though it appears she did, in the end, seek to attribute the hernia to work activities in her discussions with Ms Hinsley, Ms Jakubow and Ms Frasier [sic] on 26 September 2012, a week before surgery.
The arbitrator, after referring to the evidence of Mr M Jayasundera, a medical practitioner, concluded that the development of the hernia could have quite plausibly occurred at a later time and in a different location than in the circumstance relied upon by Mrs Audino. The arbitrator further concluded that the absence of a prescribed workers' compensation medical certificate raised a doubt as to whether Mrs Audino's complaints were linked to the alleged hernia or were in respect of her complaints regarding her menstrual cycle.
As to the medical evidence (reports of DrsKennedy and Chang) tendered in support by Mrs Audino the Arbitrator noted the opinions expressed were dependant on the accuracy of the history provided to them. He found that as he was not confident of the accuracy of the history he was not confident in the opinions which had been expressed.
The arbitrator's substantive reasons concluded with the following:
49.The only evidence that this incident occurred on 17 July is the worker's testimony. Having regard to the burden of proof that the worker carries, and the need to prove that this incident occurred on the balance of probabilities, my lack of confidence in accepting her evidence as to what happened results in me being not satisfied to the required standard that it did in fact happen.
50.In the circumstances, I am not able to make any findings that the applicant suffered an inguinal hernia arising out of, or in the course of, her employment on 17 July 2012.

The disposition of the grounds of appeal

Ground 1

The parties' submissions on Ground 1

Mrs Audino

Ground 1 asserts that the arbitrator erred in law in failing to take into account relevant evidence when finding that Mrs Audino had informed her employer that 'the incident occurred at 8.00 am'
Mrs Audino submits the true significance of the reference to 8.00 am was that if she was alleging the injury occurred at that time whilst taking down curtains, this would be inconsistent with the then common practice that curtains were not removed until after 10.30 am.
It is submitted the arbitrator erred by failing to recognise that, according to Ms Hinsley: (a) the worker's first report of the mechanism of injury was that she was 'cleaning in the other room, and [she] walked from that room to the other room'; (b) that there was a second discussion in which the worker said that it 'could have been' when she was hanging curtains; and (c) that the possibility of the injury occurring from hanging curtains was speculation on the worker's part.
Ms Hinsley agreed in cross‑examination that the possibility of the injury arising from hanging curtains was speculation on the part of Mrs Audino.

WACHS

WACHS submits there is no applicable extraneous matter or consideration that was taken into account by the arbitrator so as to give rise to an error of law. There was an inconsistency between the evidence of Ms Hinsley and Mrs Audino. The Arbitrator was entitled to have regard to the inconsistency and found against Mrs Audino on the issue.

Consideration

The arbitrator was confronted with a conflict between the evidence of Ms Hinsley and Mrs Audino as to the content of a conversation concerning when the alleged incident occurred. Whilst in her evidence Ms Hinsley did refer to Mrs Audino speculating to what she was doing when the incident occurred there was evidence from her that Mrs Audino said the incident occurred at 8.00 am. That issue was clearly put to Mrs Audino. She denied the conversation. Her evidence was rejected by the arbitrator. The arbitrator resolved the issue of fact as he was entitled to do by accepting Ms Hinsley's version. There is no merit in the ground and it is dismissed.

Grounds 2, 5 and 6

Grounds 2, 5 and 6 assert a failure by the arbitrator to accord to Mrs Audino procedural fairness. It is convenient before considering the grounds to outline the relevant legal principles.

Procedural fairness- general legal principles

It has long been established that the statutory framework within which a decision‑maker exercises statutory power is of critical importance in determining what procedural fairness requires. The particular content to be given to the requirement to accord procedural fairness will depend upon the facts and circumstances of the particular case - SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 [26].
Fairness is essentially a practical concept. It is not abstract in nature. The law of procedural fairness is concerned to avoid practical injustice: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37] (Gleeson CJ); Mijatovic v Legal Practitioners Complaints Committee (2008) 37 WAR 149 [4], [55].
In Apache Northwest Pty Ltd v Agostini [No 2] [2009] WASCA 231 Buss JA summarised the position in relation to disclosure by a decision‑maker to a party in the following way:
Ordinarily, a decision-maker is not required to disclose to a person to whom procedural fairness must be accorded the decision-maker's mental processes, provisional views or proposed conclusions before a final decision is made. Similarly, the decision-maker is not, ordinarily, obliged to send to a person to whom procedural fairness must be accorded, a draft of a report by the decision-maker which contains findings adverse to the interests of the person, for the purpose of enabling him or her to make comments or submissions. See Minister for Health v Thomson [1985] FCA 208; (1985) 8 FCR 213, 224 (Beaumont J); Alphaone, 590 ‑ 591; Ex parte Palme [22]; OzEpulse Pty Ltd v Minister for Agriculture, Fisheries and Forestry [2007] FCA 1601; (2007) 163 FCR 562 [55] (Emmett J).
Although procedural fairness does not, ordinarily, require the decision‑maker to reveal a proposed conclusion to a person to whom procedural fairness must be accorded, it may be necessary, in a particular case, for the adverse conclusion to be disclosed and for the person to be given an opportunity to comment on or make submissions in respect of it, if the proposed conclusion could not reasonably have been anticipated. See South Sydney City Council [260] - [261] (Mason P, Ipp AJA agreeing); OzEpulse [57]. [217] [218].
Proceedings where procedural fairness must be accorded may be organised to ensure fairness having regard to the nature and circumstances of the particular proceeding, including the relevant facts, the statutory context, the matters in dispute, the circumstances of the particular parties whose interests may be affected, and the legal representation of parties before the relevant body or tribunal. See Mijatovic v Legal Practitioners Complaints Committee [56] (Buss JA).
If a breach of the requirements of procedural fairness is established, a new trial will be ordered unless there was no possibility that the denial of procedural fairness could have affected the outcome: Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, 147.
The arbitrator made a specific finding that Mrs Audino was willing to deceive WACHS regarding the circumstances of the hernia.
It has been long recognised that allegations of dishonesty and fraudulent conduct must be clearly pleaded and with particularity. In Oldfield Knott Architects Pty Ltd v Ortiz Investments Pty Ltd [2000] WASCA 255 Ipp J said [35]:
More than 100 years ago, it was said that 'no rule was more clearly settled than that fraud must be distinctly alleged and as distinctly proved, and that it was not allowable to leave fraud to be inferred from the facts' (Davy v Garrett [1877] 7 Ch D 473 at 489 per Thesiger LJ). In Belmont Finance Corporation Ltd v Williams Furniture Ltd [1979] Ch 250 at 268 Buckley LJ was concerned with whether the facts alleged in a statement of claim were sufficient to bring home to the defendants a charge that the object of an alleged conspiracy was a dishonest one and that they actually knew or must be taken to have known that that was so. He said:
'An allegation of dishonesty must be pleaded clearly and with particularity. That is laid down by the rules and it is a well‑recognised rule of practice. This does not import that the word 'fraud' or the word 'dishonesty' must necessarily be used ... The facts alleged may sufficiently demonstrate that dishonesty is allegedly involved, but where the facts are complicated this may not be so clear, and in such a case it is incumbent upon the pleader to make it clear when dishonesty is alleged. If he uses language which is equivocal, rendering it doubtful whether he is in fact relying on the alleged dishonesty of the transaction, this will be fatal; the allegation of its dishonest nature will not have been pleaded with sufficient clarity.'
(See also Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563 at 573)
The importance of the issues being properly joined was emphasised by Anderson J in Oldfield Knott ([134] ‑ [135]) in the following way:
On the pleadings as they stood, all imputations of dishonesty in the witness statements were irrelevant as being beyond the issues joined on the pleadings unless the word 'wrongfully' in the reply meant 'dishonestly'. Even so, the word 'wrongfully' in the plea related only to the giving of advice as to which tender was the lowest. It was not a plea of general impropriety. It could not provide any justification for the wide-ranging allegations made by counsel for Ortiz Investments Pty Ltd in his opening address, nor could it make relevant the wide-ranging allegations of improper conduct contained in the witness statement.
The rule is very strong in civil litigation that if a party wishes to allege dishonesty as a form of breach of duty, that party must make it clear in its formal pleadings that this is the party's case. As the authors of Odgers 'Principles of Pleading and Practice' tell us in the 21st edition at 113, under the heading 'Charges of Misconduct and Negligence':
'Particularity is especially needed where the pleading contains an imputation on the character of your opponent; as then it is only right and fair that he should know definitely before the trial what is the charge which is made against him. Justice requires you to define the accusation you bring against anyone; and this is a very different thing from setting out the evidence by which you intend to establish it. "The court will require of him who makes the charge that he shall state that charge with as much definiteness and particularity as may be done, both as regards time and place" (per Lord Penzance in The Marriner v Bishop of Bathand Wells [1893] P 145 at p 146). It is no excuse for the omission of such details that the opponent must already be perfectly well-aware of the facts. Each party is entitled to know the outline of the case that his adversary is going to make against him, and to bind him down to a definite story.'
See also Davy v Garrett [1877] 7 Ch D 473 at 489; Belmont Finance Corporation Ltd v Williams Furniture Ltd [1979] Ch 250 at 268; W Scott, Fell and Company, Limited v F H Lloyd [1906] HCA 79; (1906) 4 CLR 572 at 576 - 577.
The arbitration did not proceed on pleadings. However what was said in Oldfield Knott demonstrates the importance of fairly and squarely raising and particularising allegations involving fraud or deceptive conduct. This did not occur in the proceeding before the arbitrator.

The parties' submissions on Ground 2, 5 and 6

Mrs Audino

Mrs Audino's submission is that she was denied procedural fairness because the issue of her credibility was determined in circumstances where a number of matters not raised in the hearing were relied upon by the arbitrator.
The identified matters are:
(a)that she sought to have Ms Frasier, who was not a witness to the incident, be a witness to the incident;
(b)that she sought to have another witness, Ms Jakubow, conceal the fact that she had asked Ms Jakubow not to say anything about her saying she had reported the incident to Ms Jakubow;
(c)that she was willing to deceive WACHS regarding the circumstances of the hernia;
(d)the finding that the development of the hernia could have quite plausibly occurred at a later time and in a different location to that alleged; and
(e)the absence of a prescribed worker' compensation medical certificate.
Credibility was never pleaded by WACHS in its reply. The reply contained a bald denial that an 'injury' occurred. What was asserted was that the worker had suffered a 'non-work related condition, or a condition to which her employment was not a significant contributor'. There had been in Mrs Audino's submission no indication at any stage that it would be contended that she was willing to deceive WACHS (as the arbitrator found) regarding the circumstances of the hernia. If the arbitrator contemplated such a finding given the importance of credibility to the determination the matter should have been raised with Mrs Audino.
In breach of r 27 the reply did not give full particulars of the grounds on which 'the relevant parts of the application are disputed by the party and the issues for determination by the arbitrator'.
There was no cross-examination on alternative non‑work causes for the injury. The absence of any cross‑examination as to that issue was specifically raised by Mrs Audino's Counsel in closing submissions. The absence of a 'prescribed workers' compensation medical certificate' was never raised by WACHS or the Arbitrator during the proceedings.

WACHS

WACHS submits that Mrs Audino's credibility was placed squarely in issue before the hearing. Its written outline of submissions explicitly took issue with her credibility and with the history provided to the various medical practitioners.

The statutory framework evinced a parliamentary intent that the Arbitrator is not a tribunal of pleading. Nothing in r 27, or the Rules otherwise, is capable of altering that characterisation. There cannot in WACHS' submission be any question of Mrs Audino being taken by surprise. There was no practical unfairness in the Arbitrator making findings of fact adverse to her on the question of credibility. It was in counsel's submission a credibility contest from 'start to finish'. In view of the existence of the credibility issue there was a range of potential findings including ones adverse to Mrs Audino and the reliability of her account. Adverse findings were it was submitted open on the evidentiary material provided prior to the hearing. There was accordingly no procedural unfairness.
Given that it was an issue as to whether Mrs Audino's account of having suffered an injury at work was credible, it necessarily followed that it was in issue whether the hernia sustained occurred later in time and elsewhere. Mrs Audino suffered no unfairness by such a proposition not having been put, precisely in those express terms, during the course of cross‑examination. Further it cannot fairly be said that there was any obligation on the Arbitrator to require that Mrs Audino be alerted to the potential for an adverse finding specifically by reason of the absence of a prescribed worker's compensation medical certificate.

Consideration

There was no assertion in the reply as to any fraudulent or deceitful conduct on the part of Mrs Audino. Whilst the submissions filed before trial referred to Mrs Audino's credibility being in issue there was no suggestion that it was to be submitted that any fraud or deceptive conduct was to be alleged.
The cross‑examination of Mrs Audino did not include any clear suggestion of dishonesty or deceptive conduct on her part. The focus of the cross‑examination was upon her attendances upon medical practitioners, reporting of the incident and complaints made in relation to the alleged incident. Relevantly she was not cross examined in relation to the propositions which might arise from the intended evidence of Ms Frasier and Ms Jakubow.
Counsel for WACHS when opening its case did not refer to any allegation of deceit or deception on the part of Mrs Audino. Upon the conclusion of the evidence and before the commencement of closing submissions, counsel for the WACHS had said that it was unnecessary to refer to anything other than the medical reports. Notwithstanding that remark, in closing submissions, the evidence of Ms Hinsley, Ms Frasier and Ms Jakubow was summarised by counsel for WACHS. However, there was no submission as to any deceptive or fraudulent conduct on the part of Mrs Audino.
In the course of submissions reference was made to an alleged breach of the rule in Brown v Dunne (1893) 6 R 67(HL). There was no substantial dispute as to the general principles that apply in that respect.
In Browne v Dunn Lord Herschell LC said (70 – 71):
[I]t seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.
Lord Herschell further outlined that there was no obligation to raise such a matter in cross-examination where it is perfectly clear that the witness has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling.
The rule being essentially one grounded in fairness must depend upon the circumstances of the case. Accordingly it does not apply where the witness is on notice that the witness's version is in contest. The notice may come from the pleadings, - COE.17445.ANT1#COE.17445.ANT1 or a pre-trial document indicating issues, - COE.17445.ANT.2#COE.17445.ANT.2 or the other side's evidence, or the other side's opening; - COE.17445.ANT4#COE.17445.ANT4 it may come from the general manner in which the case is conducted; - COE.17445.ANT5#COE.17445.ANT5 it may come from the way an earlier trial between the parties on the same issues was conducted. - COE.17445.ANT6#COE.17445.ANT6 In general, however, this exception to the rule should only operate where the issue is a fairly clear and obvious one. Even where there has been an exchange of affidavits or statements, a cross-examiner must put to the witness any non-obvious implications which the cross-examiner proposes to submit can be drawn from the evidence: - COE.17445.ANT7#COE.17445.ANT7 Cross On Evidence, 9^th Australian ed, par [17445].
In Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 Hunt J described the rule as follows (16):
It has in my experience always been a rule of professional practice, that unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary to both give to the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn.
The rule in Browne v Dunn is an aspect of the principle that a trial must be conducted fairly, so as not to defeat its purpose as a means of ascertaining where, in the case as developed by the parties, the truth lies: Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219, 235 - 236.
In Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation Hunt J concluded (26):
Unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings.
It is the case the witness statements of each of Ms Frasier and Ms Jakubow were delivered before trial. However the arbitrator's finding was a serious finding of dishonesty. It is no answer that the dishonesty was a reasonable inference to be drawn from the proposed evidence of the witnesses to be called by WACHS. The conduct of the hearing did not fairly suggest any willingness to deceive on Mrs Audino's part. That is the allegation which she was never required to meet at the hearing.
There is no duty on a judge to advise the parties that the party‑witness's evidence is not adequate to make out the case of that party‑witness. However it has been held to be a breach of the duty of procedural fairness where a party claiming compensation for injury was held to have feigned or exaggerated her symptoms although this had not been suggested in cross-examination and the respondent disavowed that possibility: Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 [70]; Marelic v Comcare [1993] FCA 599; (1993) 47 FCR 437, 443 ‑ 444.
The nature of the jurisdiction being exercised by the arbitrator was one which involved the determination of a right provided by the act namely compensation entitlements. The arbitrator was bound to observe the rules of procedural fairness. There was clearly flexibility in the procedure which could be adopted in the hearing. The arbitrator was required to determine the matter on the substantial merits of the case without regard to technicalities and legal form. However the provisions of the Act did not absolve him from according the parties procedural fairness.
The statutory provisions governing the power and jurisdiction being exercised by the arbitrator specifically required him to afford the parties natural justice: National Companies & Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296, 311 - 312; Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 584 – 585.
A breach of the duty to act judicially or in accordance with the rules of procedural fairness will constitute an error of law: Australian Broadcasting Tribunal v Bond (Bond Media case) (366 ‑ 367).
The arbitrator made his express finding as to deceit notwithstanding the proposition had never been put or suggested directly to Mrs Audino either in the reply, the course of oral or written submissions or cross‑examination. Deceit was clearly a significant issue in any finding as to credibility. The arbitrator was obliged to accord procedural fairness to Mrs Audino. The case as found against her needed to be adequately put to her. She needed to be given notice of the case and a reasonable opportunity to put evidence and submissions concerning that case: Parker v Comptroller-General of Customs[2009] HCA 7; (2009) 252 ALR 619 [85] per French CJ, [137] per Gummow, Hayne and Kiefel JJ.
Fairness required that Mrs Audino should have been given an opportunity to respond to what ultimately became the finding of a willingness to deceive WACHS regarding the circumstances of her injury. The arbitrator erred in not according Mrs Audino that opportunity before making his finding. If he was mindful to make a finding, as he did of a willingness to deceive he needed to allow Mr Audino the opportunity to present her answer in relation to the proposed finding. The enquiry of Mrs Audino's counsel during the course of closing submissions was inadequate. This was particularly the case as the matter had never been conducted on the basis he found. A willingness to deceive had never been alleged. Mrs Audino did not have that opportunity and in the circumstances I am satisfied she was not accorded procedural fairness. She was not given a reasonable opportunity to present her case on the deceit issue. The finding as to deceit was intertwined with and cannot be separated from the credibility finding made in relation to Mrs Audino's evidence. The finding as to credibility was central to the disposition of the claim.
The adverse conclusion (as to a willingness to deceive) needed, in all the circumstances, to be disclosed. Mrs Audino had to be given the opportunity to comment on or make submissions in respect of it or to call evidence. The conclusion as to willingness to deceive could not have been reasonably anticipated given the conduct of the proceedings.
The issue in controversy was Mrs Audino's credibility. The procedural unfairness was relevant to that issue. In terms of Stead it cannot be said that had Mrs Audino been afforded procedural fairness there was no possibility of a different outcome. The finding as to credibility was linked to the other adverse finding made against Mrs Audino.
In failing to accord Mrs Audino procedural fairness the arbitrator made an error of law. I would grant leave to appeal and allow grounds 2, 5 and 6.

Ground 3

The parties' submissions on Ground 3

Mrs Audino

In submissions filed before the hearing Mrs Audino referred to the opinions expressed by Mr Jayasundera in a report dated 15 May 2012. Specifically in relation to the hernia he had opined that 'as it was small, indirect, inguinal hernia sac, this is essentially a pre-existing weakness, and may have slowly developed with normal everyday activities'. Mrs Audino submitted that 'everyday activities' must also include work.
The Arbitrator made no express finding as to what 'everyday activities' included but did conclude that 'the development of the hernia could have quite plausibly occurred at a later time and in a different location'. In the alternative it is submitted that the Arbitrator failed to provide adequate reasons for making that finding.

WACHS

WACHS relies upon s 213(4)(d) of the Act and submits that the issue of the meaning of 'everyday activities' did not need to be dealt with in the reasons. This is because the issue at the hearing was whether the injury occurred at work on 17 July 2011.

Consideration

The principal issue at the hearing was Mrs Audino's credibility. The submission as to the evidence of Mr Jayasundera was peripheral at best. The arbitrator was not required to deal with every submission or controversy which arose in the hearing. There is no merit in the ground and it must be dismissed.

Ground 4

The parties' submissions on Ground 4

Mrs Audino

The submission is that in considering the question of why Mrs Audino did not report the hernia after its diagnosis the Arbitrator was required to examine s 178 of the Act including prejudice to the employer and the existence of a reasonable cause for delay.

WACHS

WACHS submits the timeliness and recency of any complaint concerning injury at work must be potentially relevant to an assessment of credibility.
Section 178 of the Act is concerned with a lack of timely notice giving rise to a bar to the maintenance of proceedings under the Act.

Consideration

Delay is relevant to the claim. As submitted by WACHS s 178 is directed to quite a different situation namely whether proceedings can be maintained. The arbitrator did not err in considering the issue of delay when assessing credibility. The ground is without merit and must be dismissed.

Ground 7

The parties' submissions on Ground 7

Mrs Audino

The submission made on behalf of Mrs Audino was that the arbitrator did not analyse Mrs Audino's evidence as to her work duties and the opinion of Drs Kennedy and Chang that particular duties could have caused the injury. The arbitrator had rejected their opinions without analysing the effect on their opinions of the rejection of Mrs Audino's evidence concerning the alleged incident.
Dr Kennedy had reported that 'Mrs Audino's injuries to her left inguinal region occurred as a consequence of the occupational duties that she was performing on 17 July 2011 as outlined in her witness statement of 16 May 2012'.
Dr Chang reported that:
… it does not take much stress to cause it. Indeed a cough or sneeze can cause it. In Ms Audino's case, she has documented the pain after cleaning a patient's room. Therefore any of the activity mentioned in number 53 of her statement can cause it!

WACHS

The submission of WACHS was that because the Arbitrator reached findings that were open to him in rejecting Mrs Audino's credibility, he was, equally, entitled to reject the evidence of Dr Kennedy and Dr Chang as being of limited or minimal weight. Both doctors expressed salient portions of their opinions in terms of, effectively, the ultimate issue to be determined by the arbitrator, namely whether Mrs Audino had suffered personal injury by accident in the course of her employment.

Consideration

An expert must either prove by admissible means the facts on which his or her opinion is based or explicitly state the assumptions as to fact upon which the opinion is based: Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370; Pollock v Wellington (1996) 15 WAR 1; Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705.
At common law the function of reasons is to give effect to any right of appeal, to enable an appeal court to determine whether or not an appealable error was made, and to allow the parties to understand why they were or were not successful: Mount Lawley Pty Ltd v Planning Commission (WA) [2004] WASCA 149; (2004) 29 WAR 273 [27]. The common law principles have to be applied in light of and subject to s 213(4) of the Act: Velez Pty Ltd v Tudor [2011] WASCA 218 [58].
Where there is not an exact correlation between the facts proven in evidence and the facts relied upon by the expert there must be an examination of any variation between the two in order to assess whether any unproven fact relied on or any omission from the material given renders the opinion inadmissible or of no weight.
Dr Chang provided reports dated 26 October 2011 and 24 May 2012.
In the report of 26 October 2011 Dr Change opines:
I only have Franca's history to go by. A hernia can be caused by heavy lifting. In the absence of some other incidents of lifting, then one can only blame the hanging of the curtains to be the cause of the hernia.
That opinion necessarily depends upon an acceptance of the reliability of the history provided to Dr Chang by Mrs Audino as to the absence of other incidents of lifting.
Dr Chang in the report of 24 May 2012 noted that:
She did mention that she developed pain at the hernia site after having cleaned a patient's room which involved heavy lifting. As such there is probability that the hernia was work related.
As with the earlier opinion Dr Chang's view as to causation necessarily depended upon an acceptance of Mrs Audino's account as to the development of the pain.
Dr Kennedy provided reports dated 2 March 2012 and 28 May 2012.
In his report of 2 March 2012 he opined that:
The injuries are consistent with the description of the problems as they occurred at work on 17 July 2011.
In his report of 28 May 2012 Dr Kennedy concludes that:
Mrs Audino's injuries to her left inguinal region occurred as a consequence of the assorted duties she was performing on 17 July 2011.
Dr Kennedy's opinions are dependant upon an acceptance of Mrs Audino's account as to the pain she felt on 17 July 2011.
In this case, the history Mrs Audino gave to Dr Kennedy and Dr Chang provides the factual foundation for the statement of their respective expert opinions.
The opinions expressed by Dr Kennedy and Dr Chang were dependant upon an acceptance of the version of events given by Mrs Audino. Whilst the arbitrator's analysis of the medical evidence was not as fulsome as it could have been it is the case that the real issue upon the hearing was the acceptance or otherwise of Mrs Audino's account of what had occurred on 17 July 2011. The facts upon which the opinions were based needed to be proven. The facts as outlined by Mrs Audino were the primary facts upon which the respective opinions depended. In circumstances where the facts upon which the opinions were based had not been established to the arbitrator's satisfaction he was entitled to reject the opinions of Drs Chang and Kennedy. The ground should be dismissed.

Conclusion

I accept that grounds 2, 5 and 6 involve a question of law and that leave should therefore be granted to Mrs Audino to bring this appeal.
The appeal should be allowed.