Aziz v Tempo Services Ltd - [2010] WASCA 39

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: AZIZ -v- TEMPO SERVICES LTD [2010] WASCA 39

CORAM: PULLIN JA
NEWNES JA

HEARD: 19 JANUARY 2010

DELIVERED : 2 MARCH 2010

FILE NO/S: CACV 31 of 2009

BETWEEN: DAWOOD AZIZ
Appellant
AND
TEMPO SERVICES LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISPUTE RESOLUTION DIRECTORATE, WORKCOVER WA
Coram  :COMMISSIONER McCANN
File No  :D 1994 of 2005

Catchwords:

Workers' compensation - Whether appellant was assaulted at work - Whether arbitrator erred in refusing to admit evidence of an alleged contemporaneous note of the assault - Commissioner finding this refusal was an error but then declining to have regard to that evidence in a review of the evidence - Whether error of law

Legislation:

Workers' Compensation (DRD) Rules 2005 (WA), r 64
Workers' Compensation and Injury Management Act 1981 (WA), s 58, s 145A, s 188(2), s 210(1), s 254(1)

Result:

Leave refused on ground 1
Leave granted on ground 2 and appeal allowed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr G W Nutt

Solicitors:

Appellant: In person
Respondent: Jarman McKenna

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

The Nominal Defendant v Clements (1960) 104 CLR 476

PULLIN JA: This is an appeal against a decision by a commissioner of the Dispute Resolution Directorate, dismissing an appeal from a decision of an arbitrator who dismissed the appellant's application for workers' compensation. Section 254(1) of the Workers' Compensation and Injury Management Act 1981 (WA) provides for an appeal against a decision of the commissioner with leave on a question of law.
On 7 September 2009, Newnes JA referred the appellant's application for leave to appeal to the hearing of the appeal.
The appellant's claim for compensation relates to an incident which occurred during the course of his employment as a security guard on 7 February 2005. It is not in dispute that he was employed by the respondent as a mobile security guard. On 7 February 2005, he was ordered by the control room to investigate an automatic alarm that had been activated at Medina Primary School. The appellant discovered that a break‑in had occurred and notified the police and the control room. Two police constables and the appellant's supervisor arrived at the school. The issue before the arbitrator was whether the appellant suffered a work‑related injury while investigating the alarm.
After 7 February 2005, the appellant had extended periods of leave due to a serious pathology in his lower back, including a disc protrusion with nerve impingement. The appellant received medical treatment for his back in May 2005, but did not claim workers' compensation at the time.
On 7 October 2005, the appellant and a supervisor, Mr Italiano, had a bitter dispute over work‑related matters. The appellant did not return to work after 7 October 2005 and he filed a claim for workers' compensation on 30 October 2005. The appellant's employment with the respondent was terminated on 10 November 2005. On the same day, the appellant filed an application claiming weekly payments for incapacity in relation to his back condition and the employer denied liability.
A number of facts were in dispute between the parties.
The appellant gave evidence to the arbitrator that when he attended the school on 7 February 2005, he was assaulted by an offender who jumped off the school canteen roof and kicked him in the stomach. When he was kicked, he said, the impact caused him to fall backwards and hit his back on the ground. The respondent contended that the assault did not happen.
According to the appellant, the incident caused an injury or alternatively caused the appellant's pre‑existing back condition to become symptomatic. The respondent alleges that even if the assault did occur, it did not cause injury or cause the appellant's back condition to become symptomatic.
The appellant contended that he informed the control room after the assault and that he reported the assault to the respondent in an incident report. The respondent's witnesses denied this. The appellant said the police attended on the night and he told them of the assault. Evidence from police was that they did attend but they denied that the appellant told them about the assault. The appellant said he wrote a letter to the respondent on 10 February 2005 enclosing the incident report. The respondent's witnesses denied receiving such a letter.
On 6 June 2008, Arbitrator Willers of the Dispute Resolution Directorate heard the appellant's application under s 58 of the Act for weekly payments from his employer. The dispute which the arbitrator considered was whether the appellant was assaulted by an offender on 7 February 2005 and whether he suffered from a back condition as a result. In pre‑trial submissions, the respondent denied that the appellant had been assaulted and in effect contended that his claim that he was assaulted was a fabrication.
The arbitrator held that the appellant was not assaulted as he alleged [46] and that in any event, the appellant did not suffer any injury on the night of 7 February 2005 [51].
During examination‑in‑chief of the appellant at the hearing before the Arbitrator, counsel for the appellant asked whether he made any notes of the incident on 7 February 2005 and the appellant replied that he had written notes in his notebook. Counsel for the appellant had earlier on the first day of the hearing produced the notebook and shown it to counsel for the respondent. The respondent's counsel objected to the question on the grounds that examination‑in‑chief in arbitration was restricted to clarification of matters in statements of evidence filed before the hearing. The arbitrator upheld the objection. More details of these events appear below. The arbitrator said that he upheld the objection because the appellant had a long period of time in which the evidence could have been introduced and the lateness of the application would have surprised the appellant.
The appellant appealed against the arbitrator's decision. On 5 November 2008, Commissioner McCann granted the appellant leave to appeal but dismissed the appeal on 9 March 2009.
The appellant is now self‑represented and his written grounds of appeal were difficult to understand. At a hearing on 10 August 2009 in this court, what the appellant intended to argue was discussed and as a result, two grounds of appeal were settled and leave was given to amend his existing grounds so that the only grounds now on foot read:
1.The Commissioner erred in law by denying the procedural fairness because the Commissioner should have concluded that the Arbitrator should have referred the case to a medical assessment panel.
2.The Commissioner erred in law by failing to conduct a full review of the evidence when the Commissioner said in paragraph 34 that he would conduct a full review of the evidence.

Ground 1 - referral to a medical assessment panel

This ground of appeal has no merit. Under s 145A and s 210(1) of the Act, the power to refer a question to a medical assessment panel is discretionary. No application was made to refer any question to a medical panel and in any event, the provisions of s 145A and s 210(1) did not authorise the referral of a question to a panel. Section 145A reads:

(1)Subject to subsection (2), a question may be referred for determination by a medical assessment panel under section 210 only if -
(a)there is a conflict of medical opinion on the question between -
(i)a medical practitioner engaged by the worker; and
(ii)a medical practitioner provided and paid by the employer, or each medical practitioner so provided and paid if there is more than one of them;
and

(b)one of the parties wishes the proceedings to continue.

(2)A question as to the degree of permanent loss of the full efficient use of the back, neck or pelvis may be referred for determination by a medical assessment panel under section 210 if -
(a)the employer does not agree to pay an amount claimed by the worker by way of an election made for the purposes of section 24; and
(b)the worker requests that the question be so referred.

Section 210(1) reads:
(1)If permitted by section 145A to do so, an arbitrator may refer a question as to -
(a)the nature or extent of an injury;
(b)whether an injury is permanent or temporary; or
(c)a worker’s capacity for work,
for determination by a medical assessment panel.
The arbitrator was only permitted to refer a question as to the matters listed in s 210(1). Whether an injury was suffered or not and whether an injury if suffered caused any incapacity are not questions which could be referred to a medical assessment panel.
There is no merit in ground 1 and leave to appeal on that ground should be refused.

Ground 2 - did the commissioner conduct a full review of the evidence?

The commissioner held that the arbitrator erred in reaching his decision that the application of the appellant's counsel to adduce evidence about the fact that he made a note in his work notebook surprised the respondent. He then said:
Against this background, I turn to consider whether the exclusion of the worker's evidence about the making of contemporaneous notes perpetuated a substantial miscarriage of justice. To that end I have conducted a full review of the evidence (and I have taken into account the arbitrator's determination) and reasons for decision. [34]
However, the commissioner also declined to take the note in the notebook or secondary evidence of the note into account in that review. If the note should have been admitted into evidence then the commissioner, by refusing to do so, did not complete a 'full' review of the evidence. The note in the notebook read 'I got kiked [sic] (no bleeding)' and according to his counsel, this was a contemporaneous note made by the appellant after he was assaulted.
Counsel for the appellant explained in his opening that the appellant had provided him with the notebook and said:
[W]e're not relying on this notebook. Mr Aziz obviously will give evidence that he made contemporaneous notes at the time that the assailant hit him on the 7th of February 2005, but we don't seek to rely on the notes that he made.
Counsel for the appellant said that he was mentioning it '[j]ust to draw it to your attention' (ts 7). The arbitrator then asked if it would be provided to the respondent if they wanted to look at it and asked the appellant's counsel whether he would be 'happy to consent to it going into evidence, if the respondent wanted it to go into evidence'. Counsel for the appellant said that he could not see any problem if the respondent wished the book to go into evidence. Counsel for the respondent then said that he was 'taken aback' and said that he had never heard about the book before. He submitted that there should have been disclosure before the hearing. After further debate, the arbitrator said that the appellant could give 'whatever evidence he pleases' (ts 9).
The appellant was then called and he gave direct evidence that he was assaulted by an intruder who jumped off the roof. The appellant also gave direct evidence that he fell back as a result of the assault and hurt his back either by reason of that assault or by reason that it aggravated a pre‑existing injury. This evidence was given via an affidavit verified by Mr Aziz, followed by supplementary questions in 'clarification' of his affidavit. During the supplementary questions, counsel for the appellant referred to par 18 of the affidavit. The affidavit is not before the court but it appears that it was the paragraph which referred to the assault. While the appellant was in the witness box, the following exchange occurred:
MR MILLMAN: … Mr Aziz, I wonder if you could look at paragraph 18 - of your statement.
MR AZIZ: Yes, sir.
MR MILLMAN: Did you make any notes of the incident?
MR AZIZ: Yes, I did. I did write it down on the notebook that - -
MR JARMAN: Well I object to that sir, it's not in the statement. So I don't see how it's even clarification of paragraph 18. (ts 34)
There were then some submissions during which the following exchange occurred:
MR MILLMAN: The allegation that there were n o contemporaneous notes made by the applicant worker - was made by the respondent, and …(indistinct)… submissions received yesterday afternoon.
MR JARMAN: Well with respect sir, the statement of agreed issues filed more than a year ago, puts in issue as to whether or not the assault occurred. The question is clearly on the record before the directorate, they - - both parties agreed that was the issue, and any requirement for corroborative evidence rose then. Matter of submissions is a matter of submissions on the evidence.
ARBITRATOR WILLERS: Yes. Yes, Mr ‑ ‑ Mr Millman, I'm upholding the objection. I can't see that the making or otherwise of contemporaneous notes is in any way clarification of paragraph 18 of the statement. It's been in issue for a long period of time as to whether the assault occurred or not. Your client ‑ ‑ the worker's had notice that that is an issue. In fact, I took him formulating the statement of issues and as such this is a question of if you want to put in further evidence, you should have done so quite some time back.
MR MILLMAN: Sir, I make an application from the bar table for reconsideration of your decision. I would submit sir, when reconsidering your decision, that due to ‑ ‑ take into account the objects of the Act and that the Act requires that you^?act in circumstances without regard to technical …(indistinct)… precedents, and I would submit sir that it's part of the element, a very important. The evidence is before you that my client made contemporaneous notes at the time that the assault took place. Again, I reiterate matters that were raised on Monday when the respondent's application to issue a summons to the police officer was made. Up until Monday, the respondent had not chosen to call any witnesses to give any evidence who were there that evening.
ARBITRATOR WILLERS: Okay. Well I reiterate what I indicated to you earlier, and that is what occurred on Monday as far as I'm concerned, as far as this matter goes, s irrelevant. We were dealing with an interlocutory application, which had a totally different subject matter. I don't know on what basis you're asking me to reconsider an objection which I've upheld. I don't know whether you have such a basis, but I reiterate that I'm upholding the objection. You are wanting to introduce evidence which has not been introduced in the past. You are taking the other side by surprise in that regard, and as such I'm not allowing that evidence in.
MR MILLMAN: This is the applicant's evidence from the witness box. This is his answer to questions as to whether any notes were ‑ ‑
ARBITRATOR WILLERS: No, no this is - ‑ you're currently dealing with ‑ ‑ with a situation where this is his evidence in chief. The whole basis upon which witness statements are provided is so that the parties know what evidence is going to be given in chief, and so that they're not taken by surprise in that regard, and you are now wanting to introduce fresh evidence. So ‑ ‑ would you please move on. (ts 34 ‑ 36)
There was evidence from Dr Breidahl that when he examined the appellant in May 2005, the disc protrusion he noticed in 2003 appeared to be larger.
There was no direct evidence from any of the witnesses called by the respondent contradicting the appellant's evidence that he was assaulted. However, the arbitrator did not believe the appellant's evidence that he had been assaulted. This conclusion was reached based on a number of pieces of circumstantial evidence accepted by the arbitrator including:
(a)evidence of inconsistent reports of the incident to doctors;
(b)evidence of a delay in the onset of symptoms;
(c)evidence from the police denying the appellant's claim that he reported the assault to them;
(d)evidence of the respondent's employees denying the appellant's claim that he sent a letter with an incident report three days after the incident on 10 February 2005;
(e)the difficulty the arbitrator had in understanding the mechanism involved in the assault;
(f)evidence presented by the respondent of the existence of a motive to fabricate his claim that he was assaulted (denied by the appellant); and
(g)evidence from the respondent's employees denying the appellant's claim that he reported the assault to the control room.
In each case of disputed evidence, the arbitrator preferred the evidence of the respondent's witnesses to that of the appellant.
These circumstances led the arbitrator to conclude that the appellant's evidence about the assault was a recent invention. However, this conclusion based upon circumstantial evidence would have been considerably diminished if there had been admitted into evidence a contemporaneous note made by the appellant referring to the assault.
As appears from the passages of transcript set out above, counsel for the appellant informed the arbitrator that in effect the appellant's evidence would be that the note was a note contemporaneous with the incident. Of course because of the arbitrator's ruling, no such evidence was given.
If the note had been admitted into evidence, and the appellant had been cross‑examined about it, the arbitrator would have either accepted that there was a contemporaneous note which would have substantially diminished the circumstantial evidence that he relied upon to reject the appellant's evidence that there was an assault or the arbitrator would have concluded that it was not made contemporaneously. The respondent, in written submissions filed (with the leave of the court) after the oral hearing of the appeal, contended that it was 'likely' that the note itself 'would have formed the basis for an allegation of recent invention'. That submission demonstrates that fact finding by the arbitrator about the note was essential.
If the proceedings had been proceedings in a court where the rules of evidence applied, the circumstances would have made it possible for counsel for the appellant to tender the notebook by following certain technical rules of evidence (assuming the evidence was that the note was a contemporaneous note). The technical rules of evidence are:
(a)counsel may not lead from a witness evidence of the witness's out of court statement consistent with his evidence in court: The Nominal Defendant v Clements (1960) 104 CLR 476 at 479 per Dixon CJ;
(b)however, counsel may tender evidence of such an out of court statement in re‑examination of a witness to counter a suggestion of recent invention put during cross‑examination: The Nominal Defendant v Clements, 479;
(c)it would then be necessary to comply with the best evidence rule and tender the document itself and not give secondary evidence of its contents: 'Cross on Evidence', 7th Aust ed, 39,005.
In this case, it was unambiguously clear that counsel for the respondent accused the appellant that his evidence about an assault was a recent invention. This appears from the following questions and answers:
MR JARMAN: ‑ ‑ Mr Aziz that that didn't happen, that's just a lie?
MR AZIZ: Which one?
MR JARMAN: The whole story about the offender jumping on you.
MR AZIZ: Mm hm.
MR JARMAN: And making contact with you, is not true?
MR AZIZ: Well that what you think sir, it's up to you. (ts 55)
And later:
MR JARMAN: Right. Finally, I want to put it to you that you looked around for some incident that you could blame work on, and you chose this incident on the 7th of February. And you've made up a story about being kicked in the stomach?
MR AZIZ: No, sir that's not true. (ts 116)

As already mentioned above, it was known before the appellant gave evidence from a pre‑trial document filed by the respondent, that the respondent intended to deny that there was any assault and that his claim that he was assaulted was a recent invention.
The appellant wished to give secondary evidence of the contents of the notebook during examination‑in‑chief and not during re‑examination, thereby breaching two of the technical rules of evidence referred to above.
If the technical rules of evidence were applied, then secondary evidence of the contents of the notebook could not have been tendered during evidence‑in‑chief.
However, s 188(2) reads:
(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 DRD 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.
If the document could have been tendered by observing the technical rules of evidence, then in my view, bearing in mind the provisions of s 188(2) the appellant should not have been barred from giving secondary evidence of the document (or tendering the document if there had been any dispute about the correctness of the secondary evidence). It may be observed at [47] of the arbitrator's reasons, that in relation to another document he was prepared to allow one of the respondent's witnesses to give secondary evidence of a document.
In fact, the arbitrator ruled that the notebook could not be referred to, not because of noncompliance with the rules of evidence, but because there had not been early disclosure of the notebook. The arbitrator referred to r 64 of the Workers' Compensation (DRD) Rules 2005 (WA) which provided that in those circumstances, the notebook could only be adduced into evidence with the leave of the arbitrator. Rule 64(2) provided that leave would only be given in certain circumstances, one being that the document was required to be admitted for use in the proceedings in the interests of justice. In the respondent's written submissions to this court, reliance was placed on this rule. However, the commissioner held that the arbitrator erred in this ruling that the notebook was not admissible. The commissioner regarded the note as being 'very relevant' [17] and held that because there was no evidence of prejudice and because the arbitrator did not consider the relevance of the document [28], the notebook was admissible. However, the commissioner then, in turn, declined to take the notebook into account himself, holding that counsel had only sought to lead evidence 'about the notes' [23] ie secondary evidence and not the document itself. The commissioner then said:
Counsel's decision to rest this aspect of the worker's case on the possibility of leading oral evidence, without adducing the notes themselves, was obviously a considered tactical decision on his part which was presumably made for reasons which he considered to be sound. This was not a case in which he failed to call a vital witness or completely overlooked some other critical forensic step. Also, irrespective of the precise nature of the worker's instructions before the arbitration, the course which counsel adopted occurred in his presence. In my opinion there are no grounds to declare the arbitration a substantial miscarriage of justice on account of counsel's acts or omissions [38].
In my opinion there was nothing in the conduct of the case as revealed by the transcript indicating that a tactical decision was made not to adduce evidence of the entry in the notebook. Counsel at the beginning of the hearing, although saying that he was not relying on the notebook, said that 'Mr Aziz obviously will give evidence that he made contemporaneous notes at the time that the assailant hit him on the 7th of February 2005' (ts 6) and from this I understand that counsel intended leading secondary evidence of the contents of the notebook which was present in court to be checked if there was any dispute about that

secondary evidence. In my opinion, that does not suggest a tactical decision to avoid complying with the best evidence rule.

In my opinion, the commissioner should have taken the note in the notebook into account. If he had done so in his review of the evidence of the whole case as he said that he had done, he would have reached the point where he would have been confronted with the note in the notebook which he said was 'highly relevant'. He would have concluded that it was not possible to reach a decision himself about the significance of the notebook because no evidence was led about precisely when the note was made and no finding was made by the arbitrator about whether he believed that the note was a genuine contemporaneous note or not. If the commissioner had directed himself in those terms, he would have concluded that a full review of the evidence was not possible without the appropriate findings and that as a result, he should have allowed the appeal, set aside the arbitrator's decision and remitted the matter for rehearing before another arbitrator. The refusal to have regard to relevant evidence was an error of law.
As a result, I would refuse leave to appeal on ground 1 but grant leave to appeal on ground 2, uphold the appeal and set aside the commissioner's order dismissing the appeal. In lieu, there should be an order allowing the appeal, setting aside the arbitrator's decision and ordering the rehearing before another arbitrator.
NEWNES JA: I agree with Pullin JA.