BHP Billiton Ltd v Eastham
[2013] NSWWCCPD 34
•13 June 2013
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | BHP Billiton Ltd v Eastham [2013] NSWWCCPD 34 | ||||
| APPELLANT: | BHP Billiton Ltd | ||||
| RESPONDENT: | Richard Eastham | ||||
| INSURER: | Self-insured | ||||
| FILE NUMBER: | A1-11550/11 | ||||
| ARBITRATOR: | Mr M Snell | ||||
| DATE OF ARBITRATOR’S DECISION: | 21 November 2012 | ||||
| DATE OF APPEAL HEARING: | 15 May 2013 | ||||
| DATE OF APPEAL DECISION: | 13 June 2013 | ||||
| SUBJECT MATTER OF DECISION: | Apprehended bias; conduct of arbitrator; recusal application properly refused; s 261 of the Workplace Injury Management and Workers Compensation Act 1998; making a claim; failure to comply with requirements as to making of claim; worker’s ignorance; serious and permanent disablement; causation; material contribution. | ||||
| PRESIDENTIAL MEMBER: | Deputy President Kevin O'Grady | ||||
| HEARING: | Oral | ||||
| REPRESENTATION: | Appellant: | Mr D Andersen, solicitor, Piper Alderman | |||
| Respondent: | Mr B McManamey, instructed by Frisina Lawyers | ||||
ORDERS MADE ON APPEAL: | 1. The determination and orders found in the Senior Arbitrator's Certificate of Determination dated 21 November 2012 is confirmed. 2. The appellant is to pay Mr Eastham's costs of the appeal. | ||||
BACKGROUND
Mr Richard Eastham was employed by BHP Billiton Limited (the appellant) as a boilermaker between 1959 and 1995. On 1 August 2011 he made a claim against the appellant seeking compensation in respect of noise induced hearing loss. That claim was in respect of a further loss of hearing, given that Mr Eastham had claimed and been paid compensation benefits by the appellant in respect of hearing loss on two earlier occasions being in 1980 and 1992. Whilst it is common ground that the appellant employed Mr Eastham in employment to the nature of which the relevant injury was due, the claim was ultimately disputed.
The appellant failed to determine the claim within time fixed by the provisions of s 281 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). As a result, these proceedings were commenced in December 2011 and Mr Eastham served an Application to Resolve a Dispute (the Application) upon the appellant on 9 January 2012. The appellant had, on 5 January 2012, served upon Mr Eastham’s solicitors a notice issued pursuant to s 74 of the 1998 Act. That notice advised that the claim had been denied and reasons for the decision were furnished. Those reasons included an allegation made by the appellant that Mr Eastham had not complied with the time requirements prescribed by s 261 of the 1998 Act concerning the making of a claim for compensation. Given that the s 74 notice was served out of time it became necessary for the appellant to seek leave of the Commission pursuant to s 289(A) of the 1998 Act to rely upon the defence raised in that notice. That application was made at the hearing of the matter which was listed before Senior Arbitrator Michael Snell on 23 August 2012.
The matter had earlier been listed for teleconference before Arbitrator Dennis Nolan on 7 March 2012. At that time the appellant informed the Commission that it wished to raise the defence founded upon s 261. The question concerning the need or otherwise to seek leave was not then dealt with. It appears that the appellant sought an order at that time, which was not opposed by Mr Eastham, that the matter be remitted to the Registrar for referral to an Approved Medical Specialist (AMS) to assess whole person impairment pursuant to s 321 of the 1998 Act. That order was made. As was subsequently observed by the Senior Arbitrator, that order may well have been inconsistent with the provisions of s 321(4)(a) of the 1998 Act.
The medical assessment directed by the Registrar was conducted by Dr Paul D Niall, AMS, on 22 May 2012. Dr Niall recorded a history of relevant noise exposure experienced by Mr Eastham in the course of his employment with the appellant. Also recorded in that Certificate were details relating to treatment received by Mr Eastham in 1996 concerning the surgical removal of a skull base tumour. That procedure required blind sac closure which resulted in a non-hearing right ear. Following the conduct of relevant tests, Dr Niall certified that Mr Eastham had suffered 25.1 per cent binaural industrial deafness. That assessment included the quantum of hearing loss for which Mr Eastham had earlier been compensated. As noted below at [41] agreement was reached between the parties concerning the quantum of Mr Eastham’s monetary entitlement should his claim be upheld by the Senior Arbitrator.
The Application was listed for a further teleconference, on this occasion before the Senior Arbitrator, on 10 July 2012. The claim and the defence raised by the appellant were the subject of exchanges between the Senior Arbitrator and the solicitors then appearing on behalf of the parties. That teleconference was not recorded hence there is no transcript available. The matter was set down for hearing on 23 August 2012. At that hearing the appellant made a recusal application which was stated to be founded upon matters which had transpired at the teleconference conducted in July 2012. The appellant’s application was rejected by the Senior Arbitrator, the reasons for which are recorded in a transcript (T) of that day’s proceedings. The Senior Arbitrator’s refusal of that application is challenged on this appeal.
The Senior Arbitrator proceeded to invite the parties to make submissions concerning the appellant’s application seeking leave to rely upon the defence raised in the belatedly served s 74 notice. Following argument the Senior Arbitrator ordered that leave be granted to the appellant to rely upon the defence as particularised in the notice. The reasons stated by the Senior Arbitrator for making that order are relevant to issues raised on this appeal and are addressed below.
The matter proceeded on that day and the appellant was granted leave to cross-examine Mr Eastham, such being restricted to the subject of Mr Eastham’s knowledge of his legal rights from time to time.
The matter did not conclude on that day and was stood over part heard for further hearing on 8 November 2012. Final submissions were heard on that day and the Senior Arbitrator reserved his decision. A Certificate of Determination was issued on 21 November 2012, accompanied by a statement of the Senior Arbitrator’s Reasons, in which the following orders were recorded:
“The Commission determines:
1. The respondent, pursuant to section 66 of the Workers Compensation Act 1987, is to pay the applicant the sum of $8,816.74. This sum represents the sum of $11,986 in respect of the applicant’s binaural hearing loss resulting from injury deemed to have occurred subsequent to 30 June 1987 (18.44 per cent), less the sum of $3,169.26 previously compensated.
2. The respondent is to pay the applicant the sum of $5,000 pursuant to section 67 of the Workers Compensation Act 1987 in respect of pain and suffering.
3. The respondent is to pay the applicant’s costs as agreed or assessed. The costs of both parties are to be subject to an uplift of 30 per cent, on account of complexity.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
ISSUES IN DISPUTE
The grounds of appeal relied upon by the appellant suggest that the Senior Arbitrator had erred in the following respects:
(a) failing to make any finding as to when Mr Eastham first became aware that he had received an injury within the meaning of s 261(6) of the 1998 Act (ground one);
(b) failing to find that Mr Eastham first became aware that he had received an injury on 3 July 1995 (ground two);
(c) failing to make any determination as to the date by which Mr Eastham was required to make a claim for compensation against the appellant for the purpose of s 261(1) of the 1998 Act (ground three);
(d) failing to find that Mr Eastham’s claim for compensation should have been brought within six months after 3 July 1995 as required by s 261(1) of the 1998 Act (ground four);
(e) finding that Mr Eastham’s failure to make a claim within the time required by s 261(1) of the 1998 Act was occasioned by ignorance (ground five);
(f) finding that Mr Eastham’s claim was in respect of an injury resulting in serious and permanent disablement (ground six);
(g) failing to draw a Jones v Dunkell inference in respect of Mr Eastham’s failure to adduce evidence from Moroney Rutter Mantach, Dr Raja, the Australian Metalworkers Union, Dr Rasmilic and Dr Gordon Slack (ground seven), and
(h) holding that Mr Eastham’s evidence that he was unaware of the obligation to make a claim within six months of injury was “unchallenged evidence” (ground eight).
It is further suggested that the Arbitrator’s determination is vitiated on the grounds of apprehended bias (ground nine).
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the 1998 Act have been met.
HEARING
The appellant submitted that, having regard to the issues raised, there should be a hearing of the appeal conducted rather than having the Commission determine the merits of the appeal on the papers without holding any conference or formal hearing as is permitted by the provisions of s 354(6) of the 1998 Act. Mr Eastham has submitted that the matter may proceed on the papers, but a suggestion is made in submissions that, given the suggested deficiencies concerning argument as advanced in support of the appeal, the Commission “may wish to have the benefit of oral submissions”.
Following consideration of the arguments as advanced on this appeal, I concluded that it would be appropriate that a hearing be conducted. The matter was listed for hearing on 15 May 2013 at which time Mr Anderson, solicitor, appeared on behalf of the appellant, and Mr McManamey of counsel appeared on behalf of Mr Eastham.
PROCEEDINGS BEFORE THE SENIOR ARBITRATOR
Telephone conference 10 July 2012
As noted at [5] above the teleconference conducted on 10 July 2012 was not recorded and thus there is no transcript available concerning that proceeding. The appellant’s recusal application which had been made by the appellant and determined by the Arbitrator at the subsequent hearing, was said to be founded upon the Senior Arbitrator’s conduct and statements made by him at that teleconference. That teleconference was attended by Ms O’Reilly in the company of her client Mr Eastham and the appellant’s solicitor, Mr Andersen. Both Ms O’Reilly and Mr Andersen made file notes concerning matters discussed during the course of the teleconference. Copies of those file notes were tendered as evidence on that application at the hearing.
As may reasonably be expected, the file notes compiled by each of the solicitors differ in many respects. It is fair to observe that the file note compiled by Mr Andersen, which was subsequently transcribed into typewritten form, is much lengthier than the handwritten file note compiled by Ms O’Reilly and contains much detail not mentioned in Ms O’Reilly’s notes. Ms O’Reilly’s note records that the appellant pressed its reliance upon the “s 261 issue”; noted that the matter had been set down for conciliation/arbitration on 23 August 2012 at 2pm in Sydney; that a statement relating to s 261 issue “to be provided within seven days”; that the appellant objected to “the statement”, and a note records that “s 289A issue to be pressed at the con/arb. S 74 notice was not issued to [Mr Eastham] until after ARD was filed”.
The typewritten memorandum prepared by Mr Andersen comprises nine separate paragraphs and is as follows:
“1. This matter was listed for further teleconference before Arbitrator Michael Snell on 10 July 2012 at 3:30pm. Ms O’Reilly, solicitor, was in attendance with the worker.
2. Dennis Nolan was the initial arbitrator and Mr Snell could not understand why it was referred to an AMS. We agreed it was probably because it would assist on the question of ‘serious and permanent disablement’ if we got that far.
3. A discussion ensued as to whether to list the matter for hearing in Newcastle or Sydney. The arbitrator’s preference was Newcastle, given a recent flood of claims in the Commission at Sydney. Ms O’Reilly indicated that she is expecting a child and would prefer it in Sydney. This is because I had confirmed that section 261 was a serious issue which needed to be arbitrated.
4. The arbitrator then raised whether the applicant’s statement dealt with section 261(6) as well as the question of ‘serious and permanent disablement’. Ms O’Reilly indicated in her view that she thought that it did, especially pages 3 and 4. The arbitrator said that the evidence was deficient in that regard and invited a further statement on those two issues. He said that the limitation issue may be entirely addressed depending upon whether the injury occurred for the purpose of section 261(6). He also referred to Khuna in relation to ‘serious and permanent disablement’.
5. I objected. I indicated that the proceedings should be arbitrated or discontinued. The issue was clearly raised in the Notice attached to the Reply, particularly paragraph 3 of the Section 74 Notice. Ms O’Reilly argued that the Notice was drafted after the commencement of proceedings. The arbitrator thought I may need leave under section 289A of the 1998 Act to raise these issues. I said that was disputed, and I referred to Annexure A to the Reply.
6. The arbitrator also suggested that, in the current climate of the amending legislation it could have serious cost consequences if the applicant discontinued at this stage. I said that he was duty bound to deal with the matter on the basis of the law as it currently stands. To do otherwise, and to take into account adverse cost consequences to the applicant which may or may not become law, would merely be to favour one class of litigant over another, contrary to what the Court of Appeal said in Grdovic.
7. The arbitrator said nothing about this last submission but instead returned to offering the applicant an opportunity to put on a further statement. I confirmed that we would object and that I could hardly meet such a statement, dealing with matters happening at least 15 years ago and in circumstances where I do not know what the statement might or might not say. The arbitrator said that objections to the statement should be taken at arbitration. I indicated that, having regard to the practices and procedures of the Commission and its objectives etc, it was appropriate that objection be taken now and that the matter be listed for arbitration on the currently available material or alternatively [d]iscontinued. The arbitrator repeated that objection to the further statement should be taken at arbitration.
8. The applicant was granted 7 days within which to serve a statement. The respondent can file material in reply if it needs to.
9. The matter is listed for hearing at the Commission in Sydney on 23 August 2012 at 2:00pm.”
It may be seen that the point of difference between the two file notes is simply a matter of detail. It was accepted by the appellant’s solicitor at the subsequent hearing that there was “no conflict between the file notes” (at T18.20).
It should be noted that the Commission record includes a document headed “Teleconference Outcomes” which, in accordance with Commission practice, was completed by the Senior Arbitrator following conduct of the teleconference in question. That document includes comments of the Senior Arbitrator which relate to relevant matters including Mr Eastham’s voluntary acceptance of compensation in respect of hearing loss from the appellant in 1980 and 1992. A notation was made in that document that “the deemed date of injury is 3.7.95, being the last day [Mr Eastham] worked for [the appellant]. [The appellant] disputed the matter on the basis of s 261 (the claim provisions), as this is a new deemed date of injury, and is now 17 years ago”. Also recorded is the following:
“I suggested to [Mr Eastham] they really wanted some specific evidence if they wanted to get themselves within 261(4) or (6). Ms O’Reilly will put on a further statement within 14 days. [The appellant] says it objects to the further statement, which of course does not exist yet. I suggested their objections would be better made when they know what they are objecting to.
[The appellant] wanted the matter discontinued, but [Mr Eastham] did not want to, for reasons that are readily understandable in the current circumstances”.
The conciliation/arbitration hearing
On 23 August 2012, the first day of hearing before the Senior Arbitrator, the first matter addressed was the appellant’s recusal application. It was made clear by the appellant’s solicitor, Mr Andersen, that the application was put on the basis of suggested apprehended bias. The appellant on that day provided a 27 paragraph document headed “submissions for BHP” which occupied almost nine foolscap pages. It is recorded in the transcript that neither the Arbitrator nor Mr Eastham’s representatives had been provided with notice of this application nor with a copy of those submissions until the day of hearing.
The appellant’s submissions found in that document make it clear that it was the conduct of the Arbitrator at the teleconference conducted on 10 July 2012 that was relied upon in support of its contention of apprehended bias. Given that the appellant’s submissions on that occasion have been reduced to writing and remain with the Commission file it is not proposed to attempt a detailed summary of argument as advanced. However it should be noted that the appellant’s complaint at that time concerned the manner in which the Senior Arbitrator addressed the state of the evidence presented in Mr Eastham’s case. It was put in argument that, notwithstanding Ms O’Reilly’s suggestion that Mr Eastham’s evidence was sufficient to deal with those issues raised in the appellant’s Reply, the Senior Arbitrator “invited a further statement from [Mr Eastham] …”.
Those submissions identified another aspect of the Senior Arbitrator’s conduct as being relevant to the question of apprehended bias being the suggestion that the Senior Arbitrator “expressed the view… that if the worker were effectively forced to discontinue the proceedings, this might have serious adverse costs consequences to him, by reason of the Workers Compensation Legislation Amendment Act (2012)”.
Complaint was also made concerning the Senior Arbitrator’s suggestion that the appellant may need to seek leave pursuant to s 289A(4) of the 1998 Act to rely on the defences raised.
The general tenor of submissions put in opposition to the application was that nothing raised concerning the Senior Arbitrator’s conduct was in any way capable of suggesting pre-judgment of relevant issues.
The Senior Arbitrator’s ruling on the recusal application
The Senior Arbitrator was not persuaded that he ought disqualify himself on the basis of apprehended bias. The appellant’s application was, by order, dismissed.
The reasons stated by the Senior Arbitrator for his conclusion and order are found in the transcript (between T21 and T28). The basis of the application was summarised in those reasons and reference was made to argument advanced by the appellant that the conduct relevant to a determination of possible perception of apprehended bias was that detailed in paragraphs 4, 5, 6 and 7 of the file note which is recited at [15] above.
The Senior Arbitrator made the observation that most of the authorities relied upon by the appellant related to “the judicial context of dispute resolution”. It was then stated that “the Commission is… in a somewhat different situation to more formal courts”. Reference was made to the obligations upon the Commission concerning the manner in which it deals with applications and that the day-to-day practice of the Commission involves case management (at T24).
The Senior Arbitrator made reference to the decision of South Western Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421 (Edmonds) with particular attention given to discussion by McColl JA concerning the nature of proceedings before the Commission and the statutory context of such proceedings.
When addressing the particular complaints raised by the appellant, the Senior Arbitrator stated that it was, in his view, not inappropriate that he “direct the attention of the parties to statutory provisions and to the adequacy of evidence dealing with such statutory provisions” (at T26). The observation was made that at the time of the teleconference there was no “further evidence” before the Commission and thus it was not possible “to deal with any application at that point for the admission of further evidence”.
The appellant’s arguments founded upon the Senior Arbitrator’s expression of view concerning the possible need for an application pursuant to s 289A for leave to rely upon defences raised in the Reply were rejected. That rejection was founded upon the Senior Arbitrator’s conclusion that the raising of such possibility, in the context of the prevailing circumstances, could not give rise to relevant apprehension of bias.
With respect to the appellant’s complaints that the Senior Arbitrator’s reference to “costs” in some way represented an “instance” of favouring one litigant over another, and that such submission had not been acknowledged, the Senior Arbitrator expressed a degree of puzzlement as to what manner of acknowledgement of the argument advanced was perceived as being required. It is clear that the Senior Arbitrator considered that the argument that any comment made, and the manner in which the appellant’s complaint at the teleconference was treated, was not sufficient to support the appellant’s application. The application was then dismissed.
The arbitration hearing
The first matter dealt with by the Arbitrator at the hearing concerned the appellant’s application made pursuant to s 289A(4) seeking leave to raise the defence founded upon s 261 of the 1998 Act. It is important to note that it was accepted by the appellant that such leave was required to permit referral to the Commission of such defence (T31). That application seeking leave was opposed by Mr Eastham. Following argument advanced by the parties the Senior Arbitrator made an order granting leave to raise the issues set out in the s 74 Notice dated 5 January 2012 by way of defence.
The Senior Arbitrator proceeded to consider applications by the parties concerning the admission of late evidence. The appellant took no objection to Mr Eastham’s late evidence which included a statement by him addressing matters raised by the appellant’s defence. Orders were made permitting the tender of late documents by each of the parties.
An application by the appellant to cross-examine Mr Eastham was granted, on terms, by the Senior Arbitrator. Such cross-examination was directed by the Senior Arbitrator to be restricted to the subject of Mr Eastham’s knowledge of his legal rights from time to time. That cross-examination is recorded between T55 and T63. In the course of that questioning Mr Eastham stated that at the time the current claim was initiated he believed that he had made but one claim in respect of hearing loss against the appellant in the past. He accepted that there had been two such claims, one in 1980 and a second claim in 1992. Mr Eastham acknowledged that he was represented in 1992 by solicitors Moroney Rutter and Mantach. Mr Eastham had no recollection of being examined by Dr Gordon Slack in September 1991 and stated that his memory was “absolutely shot to pieces”. Brief evidence was given by Mr Eastham in response to questioning concerning his treatment in April 1996 which followed diagnosis of a malignancy.
At the conclusion of that cross-examination the matter was adjourned for further hearing before the Commission on 8 November 2012, on which date the Senior Arbitrator refused an application made on behalf of Mr Eastham seeking leave permitting admission of a supplementary statement made by him dated, 4 October 2012, as a late document. The matter proceeded and the appellant’s solicitor, Mr Andersen, restricted his submissions to the question of the proper construction and application of s 261 of the 1998 Act. That section provides, relevantly:
“(1) Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death.
…
(4) The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the State or other reasonable cause, and either:
(a)the claim is made within 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or
(b) the claim is not made within that 3 years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker.
…
(6) If an injured worker first becomes aware that he or she has received an injury after the injury was received, the injury is for the purposes of this section taken to have been received when the worker first became so aware.”
Argument was advanced on behalf of the appellant that s 261(6) required consideration before other matters were addressed “because [that sub section] fixes the date of injury for the purposes of this section, not for all purposes or the entire Act, just the application of that section” (at T8). The evidence of Mr Eastham was summarised in the course of submissions and an assertion was made that the manner in which Mr Eastham’s case had been presented was “that he was not aware of continuing harm to his hearing”. It was put that the evidence does not support such a conclusion. Reference was also made to evidence of Dr Salmon found in his report of 30 June 2011 where that practitioner recorded a history that Mr Eastham had “felt his hearing had been affected by excessive noise exposure throughout his time in employment with BHP from 1959 to 1995”. Emphasis was also placed on that part of the history recorded by Dr Salmon where it was recorded that “[Mr Eastham] told me that his hearing loss seemed to be progressive but much worse in the last few years of his employment with BHP”. It was put that the evidence does not support a conclusion that Mr Eastham was “unaware of the continuing injury to his hearing during 1992 and 1995 in his employment with BHP” (at T10).
Reference was made by Mr Andersen to the evidence concerning referral of Mr Eastham by Dr Raja, his general practitioner, to Dr Gordon Slack for a consultation relating to hearing problems in September 1991. It was argued that “[Mr Eastham] needs to show [the Commission] … that neither Dr Slack nor Dr Raja bothered to tell [Mr Eastham] that working in noisy conditions and continuing to work in noisy conditions would continue to harm his hearing.” The case as presented by Mr Eastham was also criticised given the absence of evidence from his former solicitors concerning what may have been said concerning the risks to his hearing occasioned by continuing to work in noisy conditions with the appellant. A similar argument was advanced in relation to the absence of evidence from the Australian Metal Workers’ Union, which had apparently received a copy of Dr Slack’s 1991 report.
An argument was advanced, upon the assumption that argument summarised above was accepted by the Senior Arbitrator, that as at 3 July 1995, the date of cessation of his employment with the appellant, “the fact of injury was known to [Mr Eastham]”. It follows, it was argued, that the relevant six month period fixed by s 261(1) expired on 3 January 1996. It was put that “prima facie there’s a bar if it’s not brought by that time”. The argument was developed that it was then that the provisions of s 261(4) need to be considered in the context of relevant facts. It seems to have been argued that when considering a question of “ignorance” the matters earlier argued concerning first awareness in the context of s 261(6) were again relevant.
Mr Andersen proceeded to address the question as to whether, on the evidence, the Commission would be satisfied that the subject injury had resulted in serious and permanent disablement of Mr Eastham in terms of s 261(4)(b). Reference was made in the course of argument to the significant loss of hearing reported by Dr Salmon which had been occasioned by the treatment received by Mr Eastham concerning the malignancy in and about his right hear. It was put, that in the absence of expert evidence in support of Mr Eastham’s assertion that the injury had led to a serious and permanent disablement, it was not open to the Commission to conclude that such was the case. It was accepted in argument that the injury in question was “permanent” but it was argued that such injury was not serious within the meaning of the section and that it did not “impinge adversely on [Mr Eastham’s] capacity to work. Any such impingement is related to the April 1996 surgery and its consequences”. It was further asserted that the evidence established that Mr Eastham had “in fact retired”. That last submission was founded upon the notation made by the AMS that Mr Eastham had “worked as a swimming pool attendant from 1995 until recently”. In such circumstances the Commission could not make a finding that Mr Eastham had suffered, in the relevant sense, serious and permanent disablement.
Mr Eastham argued that first relevant awareness occurred at the end of June 2000 following consultation with his solicitors who had, by then, obtained relevant expert medical evidence. Reliance was placed upon the decision of Inghams Enterprises Pty Ltd v Jones [2012] NSWWCCPD 17. Upon an acceptance of that argument it was asserted that “the claim was brought within six months” of that first awareness.
An alternative argument was advanced by counsel that, upon an assumption that the argument concerning first awareness is rejected, Mr Eastham would be entitled to be excused from compliance with s 261(1) by reason of ignorance. It was put that the relevant ignorance concerned “the time scales required”. It is clear that what counsel was referring to in those submissions were the time requirements stipulated by s 261(1).
Reliance was placed by counsel upon the decision in Broken Hill Proprietary Company Limited v Kuhna (1992) 8 NSWCCR 401 (Kuhna) in support of an argument that Mr Eastham’s injury had resulted in serious and permanent disablement. It was argued that the “intervening condition”, being the malignancy that was surgically treated in 1996 does not represent a relevant “novus actus” concerning causation of serious and permanent disablement. Without the industrial deafness in the left ear, it was put, Mr Eastham would have “most of his capacity to hear and most of his capacity to work so far as hearing is concerned …” (at T24).
At the conclusion of argument the parties informed the Senior Arbitrator that agreement had been reached as to the monetary entitlement Mr Eastham had pursuant to s 66 should liability of the appellant be found. Agreement had also been reached in respect of his entitlement, in such circumstances, to the sum of $5,000 pursuant to s 67.
The Arbitrator’s determination
Following a summary of the procedural history of the matter and notation of the documentary evidence that was before the Commission, the Senior Arbitrator noted that “the only issue between the parties was the question of whether [the appellant] had a defence based on s 261 of the 1998 Act” (at [16] of Reasons). A finding was then made that, in accordance with the provisions of s 17(1)(a)(ii) of the Workers Compensation Act 1987 (the 1987 Act), the deemed date of injury was 3 July 1995, Mr Eastham’s last day of employment with the appellant.
The Senior Arbitrator noted that, having regard to the deemed date of injury, “on its face s 261(1) of the 1998 Act precludes the recovery of compensation in respect of this injury. Whether [Mr Eastham] can recover compensation in the circumstances then becomes dependent upon s 261(4)(b) and/or s 261(6) of the 1998 Act”.
Following a thorough summary of submissions put on behalf of each party, the Senior Arbitrator proceeded to consider the question of the application of s 261(4).
The decision of Burke J in Gregson v L & M R Dimasi Pty Ltd [2000] NSWCC 47; 20 NSWCCR 520 (Gregson) was referred to by the Senior Arbitrator concerning the meaning of the term “ignorance” as appears in s 261(4). Such ignorance, as stated in Gregson, was “ignorance of the rights deriving from the Act and the obligations imposed by it. Effectively the Court is required to be satisfied that the applicant is unaware of those rights and obligations and thus failed to make the requisite claim” (at [61]). The Senior Arbitrator had earlier (at [22] of Reasons) noted that Mr Eastham had relied upon two alternative bases upon which relevant ignorance arose. The first concerned ignorance “of having suffered further injury as a result of his exposure to noisy employment from 1992 until 3 July 1995”. The second basis concerned suggested ignorance of “the obligation to make a claim within time constraints, after an injury is suffered”. The Senior Arbitrator rejected argument as advanced on behalf of the appellant seeking to negate the existence of relevant “ignorance”. The Senior Arbitrator accepted Mr Eastham’s evidence, as found in his statement dated 11 July 2012, that he had first become aware that there was a time limit in respect of making a claim at the time the appellant rejected his “current claim” because of failure to claim as is required.
The appellant’s argument founded upon the decision in Jones v Dunkel [1959] HCA 8; 101 CLR 298 that adverse inferences could be drawn from failure by Mr Eastham to call certain evidence, being that of his former solicitors, relevant doctors who had examined him in the distant past and a trade union, was rejected.
The Senior Arbitrator, having accepted that Mr Eastham was relevantly ignorant within the meaning of the subsection, noted that his claim had not been made within three years after the injury occurred and proceeded to consider the evidence for the purpose of determining whether the relevant injury had resulted in “serious and permanent disablement”.
Following a consideration of the evidence and relevant authority, a finding was made that Mr Eastham suffers serious and permanent disablement and, further, that the noise induced deafness “materially contributes” to the disablement as found and that the disablement “results, in the relevant sense, from the noise induced deafness that constitutes injury in the current claim” (at [51] of Reasons).
The Arbitrator’s conclusion concerning matters raised by the appellant’s defence founded upon s 261 is found (at [53] of Reasons) where it was stated:
“I accept [Mr Eastham’s] injury in the form of binaural hearing loss resulted in serious and permanent disablement for the purposes of s 261(4) of the 1998 Act. As a consequence, his failure to make a claim within the period required by s 261 is not a bar to the recovery of compensation. Given the view I have formed as regards the operation of s 261(4) in the current matter, it is unnecessary that I deal further with the dispute going to the applicability of s 261(6) of the 1998 Act”.
The Arbitrator proceeded to make the findings and orders noted at [8] above.
SUBMISSIONS, DISCUSSION AND FINDINGS
This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”
Apprehended Bias
It is proposed to deal firstly with those matters raised by ground nine relied upon by the appellant, being:
“That the Arbitrator’s determination is vitiated on the grounds of apprehended bias.”
The complaint here concerns suggested error by the Senior Arbitrator in refusing to disqualify himself from continuing to hear and determine the proceedings on the ground of apprehended bias. The reasons given by the Senior Arbitrator for such refusal need not be the subject of scrutiny, but rather, what is required is application of relevant principle to the facts which are said to demonstrate such apprehended bias. Should the appellant succeed upon this ground, there would be a need to revoke the Senior Arbitrator’s decision and order remitter of the matter for hearing afresh before another Arbitrator. It is for this reason that this ground is addressed at the outset of these reasons for determination of the appeal.
There is no doubt, when dealing with a dispute such as the present, that an Arbitrator of the Commission must abide the rules of procedural fairness. Such rules include a requirement that an Arbitrator brings an impartial mind to his or her determination of the dispute. As stated by McColl JA (with whom Giles and Tobias JJA agreed) in Edmonds:
“91 Having regard to the nature of the dispute the Arbitrator was assigned to determine and the fact his decision directly affected both parties’ private rights he was, in my view, prima facie obliged to act in accordance with the obligations of procedural fairness and natural justice discussed by Deane J in Australian Broadcasting Tribunal v Bond and Others [1990] HCA 33; 170 CLR 321 at 365 ff; see also Salemi v MacKellar (No 2) [1977] HCA 26; 137 CLR 396 at 419 per Gibbs J (as his Honour then was). He was also, accordingly, obliged ‘to observe the recognized standards of judicial fairness’ (Testro Bros Pty Ltd v Tait [1963] HCA 29; 109 CLR 353 at 370 per Kitto J) and, in particular, that which required him to bring an impartial mind to the exercise of his decision-making function: see Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23; 206 CLR 128 at [20] per Gleeson CJ, McHugh, Gummow and Hayne JJ; Australian Broadcasting Tribunal v Bond and Others (at 366 – 367) per Deane J.”
The matters upon which the assertion of apprehended bias is founded concern the Arbitrator’s conduct at the teleconference which took place on 10 July 2012. Relevant matters were recorded by both parties and file notes produced by each solicitor have been recited at [14] and [15] above. It is submitted that the relevant conduct is as described in paragraphs 4, 5, 6 and 7 of the memorandum prepared by Mr Andersen, the appellant’s solicitor, which appears at [15]. In summary that conduct concerned, as put on behalf of the appellant, the Arbitrator’s “invitation” to Mr Eastham to provide supplementary evidence concerning matters raised for consideration by s 261 of the 1998 Act, and the suggestion that serious costs consequences might follow discontinuance of the proceedings by Mr Eastham.
There is no assertion of actual bias in the mind of the Senior Arbitrator. The present circumstances thus require consideration of the relevant test as was stated by the plurality in Johnson v Johnson [2000] HCA 48; 201 CLR 488 (Johnson) at [11], omitting footnotes:
“It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.”
The High Court in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 205 CLR 337 (Ebner), a decision delivered soon after the decision in Johnson, again considered the requirement that an adversarial trial be conducted by an independent and impartial tribunal. It was there stated in the joint judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ (at 344 and 355):
“Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.
The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an ‘interest’ in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.” (emphasis in original)The appellant relies upon those matters raised in written submissions put before the Senior Arbitrator concerning this question at the hearing on 23 August 2012; its “final” submissions dated 15 February 2013, as well as those submissions in reply to Mr Eastham’s argument put in opposition to the appeal. Those submissions are lengthy and detailed. Mr Andersen advanced forceful oral argument by way of submissions in support at the hearing of the appeal. Mr McManamey placed reliance upon written submissions as supplemented by oral argument at the hearing.
Before attempting to address the arguments raised it is, in my view, important to note the following matters, some of which have been earlier noted:
(a) the subject claim for lump sums was made on behalf of Mr Eastham by his solicitors on 1 August 2011;
(b) the appellant failed to determine the claim within time fixed by s 281 of the 1998 Act;
(c) Mr Eastham’s Application was registered with the Commission on 21 December 2011 but was not served upon the appellant until 9 January 2012;
(d) on 5 January 2012 a notice given pursuant to s 74 of the 1998 Act concerning disputation of the claim was served upon Mr Eastham by the appellant. That notice included an assertion that Mr Eastham could not recover compensation because the claim “was not made within six months after the injury happened, within the meaning of ss 261(1) and 261(6) of the 1998 Act”. It was further stated in that notice that such failure to make a claim within time “is not subject to any of the matters set out in s 261(4) of the 1998 Act”;
(e) a Reply to the Application was registered with the Commission on behalf of the appellant on 25 January 2012. Annexed to that Reply was a copy of the appellant’s s 74 notice;
(f) the subject of the defence founded upon s 261(1) of the 1998 Act was raised at the first teleconference conducted on 7 March 2012;
(g) statements were made by Mr Eastham’s solicitor at both teleconferences that he was ready to proceed;
(h) a supplementary statement dated 11 July 2012 made by Mr Eastham was the subject of an application to admit late documents which was dated 20 July 2012;
(i) at the hearing before the Senior Arbitrator an application was made pursuant to s 289A(4) that the appellant be permitted to rely on the defence raised founded upon s 261. That application was opposed by Mr Eastham. Following argument the appellant’s application was allowed by the Arbitrator. In the course of that application the appellant stated that it would not object to a grant of leave upon condition that the late evidence of Mr Eastham be admitted, and
(j) Mr Eastham’s late statement was admitted into evidence without objection by the appellant.
It is the appellant’s fundamental argument that the Senior Arbitrator’s conduct during the July 2012 teleconference “overwhelmingly suggests that a fair-minded lay observer might reasonably apprehend that the Arbitrator might not hear the matter impartially” (at [11] of written submissions put before the Senior Arbitrator).
The appellant (at [12] of submissions) goes further and argues that:
“ … there can be no genuine dispute that the relevant test for apprehended bias has been satisfied. The only question of substance is whether or not it can somehow be justified on the basis of the Commission’s objectives and procedures. That is, having regard to the nature of and context in which the events of 10 July 2012 occurred …”
Before consideration of the correctness, or otherwise, of these contentions it is necessary to determine whether the appellant has established those matters identified by the majority in Ebner as necessary before application of the “test concerning apprehended bias” which is noted at [57] above.
The first step, being identification of the relevant conduct which is said might lead a fair-minded lay observer to apprehend that the Senior Arbitrator might not bring an impartial and unprejudiced mind to resolution of the dispute, is touched upon at [19] and [20] above. The first matter identified, being the Senior Arbitrator’s suggested invitation to supplement evidence (the evidentiary issue) is said to be connected with a possible departure from impartiality (the second step) in the following respects:
(a) that the Senior Arbitrator “persisted” in the view that [Mr Eastham’s evidence] was insufficient, and invited a further statement from [Mr Eastham] despite the initial [position as to readiness] taken by [Mr Eastham] through his solicitor (at 2.4 submissions, 23 August 2012);
(b) that the Senior Arbitrator provided “assistance” to Mr Eastham which exceeded that which may be permissible even in circumstances where a party is unrepresented (at [23] of submissions, 23 August 2012);
(c) that the Senior Arbitrator’s conduct does not “represent some ‘regular practice’” in the Commission and that it should be “deprecated” not “encouraged” (at [25] of submissions, 23 August 2012);
(d) that the Senior Arbitrator was, at the March 2012 teleconference, “of the opinion that [Mr Eastham] had no real prospect of showing that he was not aware of all relevant matters such as injury and entitlement to compensation” (at [57] of final submissions), and
(e) that the Senior Arbitrator had given “advice to [Mr Eastham] as to how to further prepare his case (at [80.1] of final submissions).
The second matter identified was the suggested expression of the Senior Arbitrator’s view at the July 2012 teleconference (as summarised in submissions 23 August 2012 at [2.5]) “that if [Mr Eastham] were effectively forced to discontinue the proceedings, this may have serious adverse cost consequences to him, by reason of the Workers Compensation Legislation Amendment Act (2012)” (the costs issue).
It is argued by the appellant, that the relevance of the “costs issue” is that the Senior Arbitrator’s approach demonstrated that he had favoured Mr Eastham over the appellant as was found by the Court of Appeal in Meggitt Overseas Ltd v Grdovic (1998) 16 NSWCCR 373; 43 NSWLR 527 (Grdovic) and that such favour is not permitted (per Mason P at [45]).
The evidentiary issue
Mr Eastham submits that there has not been “clear identification of the matters said to give rise to apprehended bias”. That suggestion must be rejected. The matters as summarised above plainly demonstrate the appellant’s assertions concerning the impugned conduct. The question on this appeal is whether, having regard to what is known of that conduct, it could be said that the Senior Arbitrator was disqualified because he had “crossed the line” in the sense that term was used by Kirby J in Antoun v The Queen [2006] HCA 2; 80 ALJR 497 (at [47]).
The appellant’s argument suggests that there can be no genuine dispute that the relevant test has been satisfied and, further, that the question is whether the Senior Arbitrator’s conduct can, in some way, be justified having regard to procedural matters. I reject that argument. The test is either satisfied or it is not. In determining whether the test is satisfied, that is that the “line” has been crossed, requires consideration of what might be apprehended by the fair-minded lay observer. Such consideration requires attention to be given to the characteristics of the lay observer. It is helpful to consider the discussion found in Review of Administrative Action , M Aronson, B Dyer, M Groves (Law Book Company 4th ed 2009) at [9.85]) where the following appears, omitting footnotes:
“The hypothetical person against whom the test for bias is measured is remarkable. The courts have imbued this person with many qualities, some of which remain fairly constant, while others appear to change greatly depending on their context. It is well settled that the hypothetical person is both objective and reasonable, and will give the issues raised in support of a claim of bias some thought rather than make a snap judgment. It follows that hypothetical people will not consider conduct that is claimed to support a claim of bias in isolation but will instead base their opinion ‘on a fair assessment of judge’s conduct in the context of the whole of the trial’.”
Whilst proceedings before the Commission may be distinguished from proceedings before a court, the following observations made by Basten JA in Jae Kyung Lee v Bob Chae-Sang Cha [2008] NSWCA 13 are of assistance concerning the subject of the lay observer (at [43]–[44]):
“There remains a questions as to what the fair-minded lay observer should be taken to know about the particular proceedings in question. The idea that any fair-minded lay observer would have sat through six weeks of the trial may be an oxymoron. In reality, the reference to such a person is no more than a personification of an objective test. There is usually no harm in such personification, which is a commonplace in the statement of legal principles, so long as it is not an excuse for fuzzy thinking about the test to be applied.
The key part of the test is that the observer is understood to be a lay person and not a lawyer. As expressed by Callinan J in Concrete Pty Ltd, at [177]:
‘It is axiomatic that the perception of a lay observer will not be as informed as the perception of a lawyer, particularly a litigation lawyer. But the notional lay person should not be taken to be completely unaware of the way in which cases are brought to trial and tried.’”
The lay observer in the present case is taken to have witnessed the events which took place at the July 2012 teleconference. That procedure is, to an extent, peculiar to the conduct of litigation before the Commission. It is, in my view, reasonable to assume that such observer was aware that the teleconference was a preliminary step in proceedings. That person would also have a general understanding of the objectives of such a teleconference which include, as appears in the Commission’s Practice Guideline, to “explore resolution of the dispute” and “to clearly identify the issues remaining in dispute and to ensure the matter is ready for the next phase”. I am of that view given that it is incumbent upon the Arbitrator to explain to the parties the nature of the procedure and its objectives, and further that the lay observer would be aware of the general circumstances concerning the litigation.
Given the absence of a transcript of the teleconference proceeding the Commission, when addressing the subject of apprehended bias, must rely upon an imperfect record of events being the solicitors’ file notes and the Arbitrator’s note concerning its outcome, each noted above at [14], [15] and [17].
It is clear that the Senior Arbitrator was confronted with a disputed claim in respect of which there was a defence raised by the appellant which could not, in his view, be litigated in the absence of a grant of leave. It is also reasonably clear that the Senior Arbitrator anticipated and indeed considered necessary, an application seeking such leave. That defence had not been communicated to Mr Eastham by the time his application, with supporting documents, had been registered with the Commission. Proper presentation of each case required that any factual issues relating to that defence be raised by Mr Eastham. That the appellant would have an opportunity to respond to any further evidence from Mr Eastham is recorded at [8] of the appellant’s file note.
McColl JA, in the course of her consideration of the Commission’s jurisdiction in Edmonds, had occasion to cite the view expressed by Deane J (with whom Fisher J agreed) in Sullivan v Department of Transport (1978) 20 ALR 323 at 342-3 where a provision similar to s 354 of the 1998 Act, which regulates procedure before the Commission, was there considered. His Honour was of the view that the Tribunal’s objectives would “ordinarily be best achieved by a ready identification of the issues … in truth, in dispute between the parties” and that “circumstances may … arise in which … the statutory tribunal, in the proper performance of its functions, will be obliged to raise issues which the parties do not wish to dispute and to interfere, either by giving guidance or by adverse ruling, with the manner in which a particular party wishes to present his case”.
Whilst it must be kept in mind, as put by the appellant, that the Court in Edmonds was addressing an allegation of actual bias, it was the view of McColl JA (with whom Giles and Tobias JJA agreed) that (at [105]):
“[t]he nature of the jurisdiction the Arbitrator was exercising made it obligatory that he form a view about the issues. He appears to have expressed the view at the initial teleconference that the documents raise the ‘disease injury’ issue. The respondent adopted that view and amended her case.”
I conclude that the appellant is wrong in suggesting that there was a requirement to consider the nature of the Commission’s jurisdiction and its procedures to determine whether the Arbitrator’s conduct is “justified”. However that is not to say that the nature of the proceedings has no relevance. As was stated by Hayne J (with whom Gleeson CJ and Gummow J agreed on this subject) in Minister for Immigration & Multicultural Affairs v Jia [2001] HCA 17; 205 CLR 507 (Jia), concerning non-curial decision making (at [187]):
“In the case of a court, it will usually be self-evident that the issue, if an issue of fact, is one which ought to be considered afresh for the purposes of the particular case by reference only to the evidence advanced in that case. Other decision-makers, however, may be under no constraint about taking account of some opinion formed or fact discovered in the course of some other decision. Indeed, as I have already pointed out, the notion of an ‘expert’ tribunal assumes that this will be done. Conferring power on a Minister may well indicate that a particularly wide range of factors and sources of information may be taken into account, given the types of influence to which Ministers are legitimately subject. It is critical, then, to understand that assessing how rules about bias, or apprehension of bias, are engaged depends upon identification of the task which is committed to the decision-maker. The application of the rules requires consideration of how the decision-maker may properly go about his or her task and what kind or degree of neutrality (if any) is to be expected of the decision-maker.”
Whilst the task of the decision maker in Jia may be distinguished from the task assumed by an arbitrator of the Commission in conduct of a teleconference as part of the adjudicative process, there is an obligation upon an arbitrator, as stated by McColl JA in Edmonds (at [104]):
“As the foregoing discussion reveals, a judicial officer has never been required to approach a case with a blank mind. Here the Arbitrator was required to consider the ‘substantial merits of the case’ (s 354(3)). His first task at the initial teleconference, of which there is no record before the Court and at which he is said to have ‘instigated’ the ‘disease injury’ amendment, was to use his best endeavours to bring the parties to a settlement acceptable to all of them before determining any dispute (s 355). This was an ‘overall and continuing duty’: Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 (at [25]). Seeking to bring the parties to settlement no doubt meant he should, as the Guidelines outlined, identify issues and ‘practical’ solutions’. If the initial teleconference did not achieve settlement he could either determine the matter on the papers or proceed to a conciliation conference/arbitration hearing. Where a further hearing was required it might be expected, as the Guidelines again outlined, that he would ‘clarify and reduce issues’. Other aspects of the Commission’s obligation to identify the issues without regard to technicality are set out in the Deputy President’s judgment (at [11] – [17]).”
The material before the Commission demonstrates that the Senior Arbitrator had perceived the nature of the defence likely to be raised in the proceedings, the probable deficiency of Mr Eastham’s evidence concerning such likely defence and the circumstance, being late service of the s 74 notice, that had given rise to silence in Mr Eastham’s case on that subject. His obligation was to define the issues to ensure a just outcome.
I reject the appellant’s suggestion that the fair-minded lay observer might apprehend bias as suggested. In particular, I do not accept that there would be a perception that the Senior Arbitrator “assisted” or “advised” Mr Eastham. The Arbitrator had no knowledge as to the existence, or otherwise, of any relevant evidence. His granting of leave to supplement evidence was made to ensure the likelihood that relevant issues were addressed. An opportunity to similarly supplement evidence was afforded the appellant.
The nonchalance, as suggested by the appellant, of the solicitor appearing on behalf of Mr Eastham concerning the need or otherwise for such supplementary evidence is not a circumstance, in my view, relevant to whether the fair-minded observer might apprehend bias. Prudently, in my view, leave to adduce such evidence was granted. Subsequently that leave was acted upon. The granting of such leave permitted an opportunity for reflection which, plainly, was taken by those advising Mr Eastham. Evidence relevant to the issue raised, once leave to rely upon the defence was granted, was thus before the Commission and permitted determination of the dispute as required by the provisions of s 354(3) which provides:
“(3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”
For the reasons stated, I conclude that the appellant has failed to establish, on the basis of the “evidentiary issue”, that the Senior Arbitrator had by his conduct been disqualified to adjudicate the dispute. I am fortified in this view having regard to those observations made by Kirby J in Johnson (at [504-505] omitting footnotes):
“Whatever may have been the tradition in earlier times, opinions favouring silence on the part of an adjudicator during a hearing (which is the surest means of avoiding most allegations of prejudgment) are now seen as carrying risks of an even greater injustice. Unless the adjudicator exposes the trend of his or her thinking, a party may be effectively denied justice because that party does not adduce evidence or present argument that could have settled the adjudicator’s undisclosed concerns. A frank dialogue will commonly be conducive to the avoidance of oversight and the repair of misapprehensions.”
The costs issue
The appellant’s complaint concerning the costs issue relates to the legislative history of the Workers Compensation Legislation Amendment Act 2012 (the Amendment Act). The Workers Compensation Legislation Amendment Bill 2012, which was the subject of debate and amendment before Parliament during the first part of 2012, contained, inter alia, provision for miscellaneous amendment of the 1998 Act. A relevant proposed amendment was to be found in Sch 11 of that Bill (at cl [11]) as follows:
“Sections 341, 342, 343 and 345
Omit the sections. Insert instead:
341 Costs
(1)Each party is to bear the party’s own costs in or in relation to a claim for compensation.
(2)The Commission has no power to order the payment of costs to which this Division applies, or to determine by whom, to whom or to what extent costs to which this Division applies are to be paid.”
The Amendment Act received Royal assent on 27 June 2012. Such assent excluded the costs provisions noted above. As at the date of the teleconference those costs provisions had not passed into law. It is of relevance that the savings and transitional provisions found in the Amendment Act which commenced operation on 27 June 2012 provides:
“Costs in proceedings
An amendment made by the 2012 amending Act to section 341 (Costs to be determined by Commission) of the 1998 Act does not apply in respect of proceedings commenced in the Commission before the commencement of the amendment.”
It seems that the appellant had, at the teleconference, submitted that Mr Eastham’s Application should proceed to hearing without there being any supplementary evidence, or otherwise proceedings should be discontinued. As recorded by the Senior Arbitrator, Mr Eastham did not wish to discontinue the proceedings “for reasons that are readily understandable in the current circumstances”. The “current circumstances” were, undoubtedly, the pending amendment concerning non-recovery of costs.
The appellant’s argument suggests that the Senior Arbitrator’s approach demonstrated that he had “favoured” Mr Eastham over the appellant in a manner as was considered by the Court of Appeal in Grdovic. In Grdovic a judge of the former Compensation Court of New South Wales had granted an adjournment application made by a worker in circumstances where such adjournment would permit the passage of time during which it was expected that proposed legislative changes would occur and the worker wished to take advantage of such changes. An appeal against the order granting the adjournment was upheld. Mason P (with whom Sheller and Beazley JJA agreed) there stated (at 537):
“If a court were to exercise a discretion to adjourn pending litigation by reference to the substantive benefits foreshadowed by proposed legislation, it would inevitably be drawn into the type of considerations referred to in the passage I have just quoted. A court of law cannot choose to favour one class of litigants over another without lawful authority.”
I am not satisfied that the fair-minded bystander might have reached the view that the Senior Arbitrator might so favour Mr Eastham. Even upon an acceptance of the factual circumstances as summarised in the appellant’s file note (particularly at [5], [6] and [7] of that document) it must be remembered that the Commission has very limited power to dismiss proceedings: s 354(7A). It should also be noted that no application had been made by the appellant that such order of dismissal be made. The evidence, such as it is, merely indicates that the appellant asserted that the proceedings should be discontinued. Mr Eastham, the moving party, had the only discretion to discontinue and, as recorded by the Arbitrator, he preferred to maintain his application for reasons which plainly included consideration of possible cost consequences. For the reasons above stated, ground nine relied upon by the appellant is rejected.
Construction and application of s 261 of the 1998 Act
The remaining grounds of appeal relied upon by the appellant concern suggested error on the Senior Arbitrator’s part in the manner of construction and application of s 261 of the 1998 Act, the terms of which are noted at [33] above. Those grounds, in part, include challenges to factual findings made in the course of reasoning concerning the application of that section.
It was put on behalf of the appellant at the hearing of the appeal that grounds one to four inclusive “run together”.
It is argued that, by reason of the structure of s 261, the first step required when applying that provision is the making of a finding as to when an injured worker first became aware of the receipt of injury in terms of s 261(6). It is argued that it is only after such a finding has been made that “the balance of s 261 can be properly considered and applied”. I do not accept that argument. I am of the opinion that a proper reading of the section as a whole demonstrates that Parliament has prescribed requirements concerning the making of a claim together with provisions which would excuse, in particular circumstances, non-compliance. The onerous requirements concerning the making of a claim may be excused in an appropriate case by the application of s 261(4) or, quite independently of that subsection, a worker may not be held bound by the terms of s 261(1) if proof of those matters prescribed by s 261(6) are established. Whilst it is correct, as argued by the appellant, that sub-s (6) states that injury “is for the purpose of this section taken to have been received when the worker first became [aware of the receipt of an injury]”, such follows only if the relevant facts of a particular matter are within the terms of the subsection. That is, an injured worker may place reliance upon s 261(6) in circumstances where awareness of injury postdates the occurrence of the injurious event. The existence of that subsection does not, as the Arbitrator has found, preclude a worker from reliance upon the terms of s 261(4).
The approach adopted by the Senior Arbitrator involved consideration as to whether, on the facts, Mr Eastham was entitled to the benefit of the provisions of s 261(4). Such consideration was required having regard to his earlier finding that injury was deemed to have happened on 3 July 1995. A finding was made, which is challenged on this appeal, that Mr Eastham was ignorant within the meaning of that term as it appears in the subsection and that, notwithstanding that the claim had not been made within three years of the deemed date of injury, Mr Eastham was excused from compliance with the notice requirements given the finding that the injury had resulted in serious and permanent disablement. These challenged findings are addressed below.
Having made the findings to which I have referred immediately above, the Arbitrator, properly in my view, determined that “it is unnecessary that [he] deal further with the dispute going to the applicability of s 261(6) of the 1998 Act”. The Senior Arbitrator had earlier acknowledged that matters relevant to that last mentioned subsection had been raised on behalf of Mr Eastham. The fact that such arguments had been advanced on his behalf did not preclude a consideration by the Senior Arbitrator of the relevance or otherwise of s 261(4) at the outset of his determination of the dispute.
In these circumstances I find that the appellant has failed to establish error on the part of the Senior Arbitrator in failing to make a finding as to when Mr Eastham first became aware of the receipt of injury. It follows that I also reject the appellant’s argument that error was demonstrated by the failure of the Senior Arbitrator to find that Mr Eastham first became aware that he had received injury on 3 July 1995. Grounds one and two must fail.
I have earlier determined that s 261(4) may apply, and in the present case does so, independently of s 261(6). Mr Eastham’s compliance with s 261(1) was, as found by the Senior Arbitrator, excused having regard to the application of s 261(4) to the facts as found. In such circumstances the Senior Arbitrator was, in my view, correct in concluding that there was no requirement to make a finding as to the date by which the worker was required to make a claim. The appellant’s assertion in ground three that such determination was required is rejected. Ground three fails.
Ground four suggests error on the part of the Senior Arbitrator in failing to find that the claim should have been brought “within six months after 3 July 1995 as required by s 261(1)”. At [17] of Reasons the Senior Arbitrator determined:
“The applicant’s last day of employment with the respondent was 3 July 1995. Section 17(1)(a)(ii) of the 1987 Act fixes that date as the deemed date of injury. As the relevant claim was forwarded to the respondent on 1 August 2011, on its face section 261(1) of the 1998 Act precludes the recovery of compensation in respect of this injury. Whether the applicant can recover compensation in the circumstances then becomes dependent on section 261(4)(b) and/or section 261(6) of the 1998 Act.”
I have earlier stated my reasons for rejecting the appellant’s argument concerning the manner of application of s 261 to the facts of this matter. The Senior Arbitrator has, contrary to that asserted by the appellant, acknowledged that Mr Eastham had not complied with s 261(1) as may be seen from the extract from his Reasons noted immediately above. The Senior Arbitrator then proceeded to consider the operation of s 261(4) to the facts. No relevant error is established upon this ground. Ground four is rejected.
The fifth ground relied upon by the appellant suggests error on the part of the Senior Arbitrator in finding that Mr Eastham’s failure to make a claim within the time required by s 261(1) was occasioned by ignorance. Submissions in support of this ground suggest that there should have been a finding that Mr Eastham “had failed to discharge his burden of proof of showing that his failure to make a claim by 3 January 1996 was occasioned by ‘ignorance’”. That submission implies acceptance on this appeal of the appellant’s argument concerning the manner in which s 261 is to be construed. I have earlier dealt with that question and rejected those matters put concerning the proper construction and application of the section. In the circumstances it is proposed to consider the arguments advanced concerning the finding, being one of fact, that Mr Eastham’s failure to comply with the requirements of s 261(1) was occasioned by ignorance.
The appellant has provided detailed submissions between [5] and [11] which are said to be relevant to scrutiny of the Senior Arbitrator’s finding concerning “ignorance”. Those submissions relate to the availability of inferences to be drawn from the evidence concerning knowledge of his further hearing loss occasioned by relevant work conditions. I am of the opinion that those arguments have no relevance to the question of the existence or otherwise of relevant “ignorance”. As put by Mr McManamey, there is a distinction between knowledge of injury and knowledge of one’s rights and obligations. The Senior Arbitrator, correctly in my view, placed reliance upon the decision of Burke J in Gregson where it was stated by his Honour that:
“The ignorance referred to is ignorance of the rights deriving from the Act and the obligations imposed by it. Effectively the Court is required to be satisfied that [the worker] was unaware of those rights and obligations and thus failed to make the requisite claim”.
It seems that the appellant also places reliance on those arguments as providing a basis upon which an inference may be drawn that Mr Eastham had been aware of his obligations under the workers compensation legislation at a relevant time. Reference is made to the decision of Zouroudis v Plastic Surfaces Pty Ltd [2005] NSWWCCPD 113 (Zouroudis). In Zouroudis the Deputy President confirmed certain factual findings made by an Arbitrator upon the basis that such findings were open to the Arbitrator on the evidence. That decision does not provide any relevant legal precedent concerning the correctness or otherwise of the Senior Arbitrator’s determination in the present matter.
The Senior Arbitrator’s determination that failure to comply had been occasioned by relevant ignorance involved findings of fact: first, that such ignorance existed and, second, that such ignorance led to non-compliance. As with the Arbitrator’s conclusions as found in Zouroudis, the Senior Arbitrator’s findings in the present matter were open to him on the evidence and, in my opinion, may not be disturbed. The appellant seeks to emphasise in submissions the evidence of Mr Eastham concerning his memory being “shot to pieces”. Argument is developed that, in the absence of corroborating evidence, Mr Eastham’s evidence concerning such ignorance standing alone in all relevant circumstances would not discharge the relevant burden of proof. Reliance is placed upon observations made concerning memory of a witness as found in the judgment of McHugh J in Brisbane South Regional Health Authority v Taylor [1996] HCA 25 and by his Honour in Longman v R [1989] HCA 60. It appears to be the appellant’s argument that the Senior Arbitrator has either overlooked or given undue or too little weight to certain evidentiary matters and circumstances when determining the question of ignorance as was discussed by Barwick CJ in Whiteley, Muir & Zwanenberg v Kerr (1966) 39 ALJR 505. I reject that suggestion and confirm my view that the factual conclusions reached by the Arbitrator in this regard were open to him on the evidence and demonstrate no error. The Arbitrator has taken into account those arguments raised before him by the appellant and has plainly stated his reasons for so concluding. In particular, in my view, it was open to the Arbitrator to make the observation complained of by the appellant as found at [34] of Reasons where it was accepted that, had there not been requisite ignorance at the date Mr Eastham ceased employment it might, as submitted on his behalf, have reasonably been expected that he would have claimed at that time. Ground five is rejected.
Ground six relied upon by the appellant challenges the Senior Arbitrator’s finding that the “worker’s claim was in respect of an injury resulting in the serious and permanent disablement of [Mr Eastham]”. The Senior Arbitrator dealt with this question between [36] and [53] of Reasons. In the course of those Reasons reference was made to relevant authority concerning the concept of “disablement” being the decision of Mahoney JA in Kuhna and that of Burke J in Gregson. It was accepted by the Senior Arbitrator that the disablement must be proven to be serious, permanent and that there be an impingement or interference with capacity to work. The evidence of Mr Eastham concerning the impact upon him of his deafness was accepted by the Senior Arbitrator and he was also satisfied that Mr Eastham “could not carry out work where he had to engage in telephone conversations, or converse with people (particularly in groups). He could not work in circumstances where the ability to hear is necessary for reasons of safety.” The Senior Arbitrator proceeded to state that he was satisfied that Mr Eastham’s level of hearing loss would have a serious impact on his capacity to perform work (at Reasons [44]).
It was acknowledged by the Senior Arbitrator that Mr Eastham’s hearing impairment “does not all result from noise induced hearing loss” (at [45] of Reasons). The Arbitrator noted the “profound loss in the right ear associated with the tumour, and its surgical removal in 1996”. A submission put on behalf of Mr Eastham, that the level of noise induced hearing loss experienced before the events of 1996 may have been sufficiently high to have seriously interfered with his ability to engage in employment where good hearing was necessary, was noted. The Senior Arbitrator found that there was “no direct evidence to that effect”.
The relevant finding concerning disablement is to be found at [46] of Reasons where it was stated:
“Since the surgical removal of the right sided tumour, the applicant’s hearing loss on that side has been significantly compromised. This inevitably would result in him becoming more dependent on his sense of hearing in his left ear. The noise induced hearing loss in the applicant’s left ear is such that he is left as a person whose overall level of hearing is severely impaired. His functioning is effected in the significant ways identified in his statements. This constitutes serious and permanent disablement applying the test set out in Kuhna and Gregson.”
The appellant in submissions draws attention to the wording of s 261(4) which makes reference to injury being one “resulting in” serious and permanent disablement. It is put that the Senior Arbitrator has “used the incorrect test” when determining that question posed by the terms of the statute. Particular criticism is directed to the Senior Arbitrator’s consideration concerning the question as to whether the subject injury “materially contributed” to that disablement. In support of that argument reference is made to the decisions in Accident Compensation Commission v CE Heath Underwriting & Insurance (Australia) Pty Limited [1994] HCA 68; 68 ALJR 525 (Accident Compensation Commission) and Commonwealth v Butler [1958] HCA 56; 102 CLR 465 (Butler). Those decisions are relied upon in support of the submission that there should be adherence to the statutory text and that there should be no attempt at paraphrase.
It is further argued that error is demonstrated given that the relevant disablement was found “by reference to the totality of [Mr Eastham’s] industrial deafness, which was calculated at 25.1 per cent” (at [29] of final submissions). It is argued that the relevant injury was a further loss of hearing calculated as 13.5 per cent binaural. The higher figure of 25.1 per cent, it is emphasised in submissions, includes the hearing loss resulting from earlier injury in respect of which Mr Eastham had been compensated by the appellant. The appellant argues that the evidence supports the conclusion that Mr Eastham’s disablement manifested following the surgery conducted in 1996. This argument is advanced upon the basis that Mr Eastham’s supplementary statement is expressed in the present tense concerning the impact of his hearing difficulties upon his capacity to work. Submissions also seek to emphasise the absence of expert medical evidence concerning the question as to whether serious and permanent disablement has resulted from the subject injury. The appellant, in submissions on this appeal, reiterates argument as advanced before the Senior Arbitrator that the evidence, such as it is, suggests that the 1996 tumour surgery “caused a profound hearing loss and an alleged consequent serious and permanent disablement”.
The appellant makes reference to the matters recorded in the AMS report which, it is argued, leaves no doubt that Mr Eastham is “fully retired”. Upon acceptance of that argument it is put that his capacity for work could not be considered to have been adversely affected by the disablement, given that he had retired.
The appellant correctly submits that Mr Eastham gains the benefit of the provisions of s 261(4) only upon proof that the subject claim “is in respect of an injury resulting in the death or serious and permanent disablement of [Mr Eastham]”. That wording plainly raises the question as to the existence or otherwise of a relevant causal nexus between the subject injury and the disablement as found.
It appears, having regard to the findings noted at [48] above, that the Senior Arbitrator has treated the question of causation of the relevant disablement as involving firstly the non-work related right sided impairment as well as the aggregated impairments in the left ear. The appellant has argued that the relevant injury is the 13.5 per cent impairment as assessed, not the overall 25.1 per cent. I reject that argument. It is my view that it was correct to take into account the aggregated impairment. As stated by Spigelman CJ in State Transport Authority v Chemler (2007) 5 DDCR 286 (at [40]):
“In [workers compensation law], as in negligence, the talem quatem principle is applicable ie employers take their employees as they find them”.
The Senior Arbitrator has, in my view, correctly placed reliance in the course of his reasoning upon the decisions of the High Court in Calman v The Commissioner of Police [1999] HCA 60; 167 ALR 91 and March v E & MH Stramare Pty Ltd [1991] HCA 12; 171 CLR 506 (March) when considering the questions concerning the application of s 261(4). That provision plainly raises an issue of causation. Whether such question arises in the context of workers compensation law, or that of the law of negligence, the same principles are relevant: see Migge v Wormald Bros Industries Ltd (1972) 2 NSWLR 29 per Mason JA (as he then was) in dissent, at 44, whose views were subsequently approved by the High Court. The question as to causation is a question of fact to be determined having regard to the circumstances of the particular case. Presentation of expert evidence is not a requirement of proof of such fact.
The appellant’s contention, that the Senior Arbitrator has applied the “incorrect test” concerning whether the injury was one resulting in serious and permanent disablement, seems to be founded upon his adoption of the term “material contribution”. At [26] of final submissions the appellant makes reference to the leading judgment of Brennan J in Accident Compensation Commission where his Honour observed that there is no substitute for the statutory test. The correctness of that statement may not be doubted. However it must be noted that his Honour in that judgment, when considering an insurer’s entitlement to recompense from a statutory fund in respect of increased liability for material injury, treated such material injury as being one “causing or materially contributing to an incapacity” (at 534).
The observations made by Windeyer J concerning the application of the words of a statute as found in Butler which are recited by the appellant at [27] of final submissions may, again, not be doubted. However it must be remembered that the Court was there concerned with, as stated by his Honour, “causal sequence” where death was said to have resulted from a particular injury being one of numerous coronary occlusions suffered by the deceased. The difficulties arising from a consideration of such question is well demonstrated by the reasoning and conclusions of Barwick CJ (with whom all members of the Court agreed) in Conkey & Sons Ltd v Miller (1977) 51 ALJR 583 (Conkey) in which similar facts to those in Butler were considered. The decision of the Court in Butler was, having regard to the evidence presented in Conkey, distinguished. That evidence permitted the finding at first instance that the injury alleged, an infarction in 1974, “made it probable that the worker could not survive a further infarction”. The outcome of each of these cases again demonstrates that the question of causation, a question of fact, is one to be determined on the evidence in each particular case.
The term “materially contributed to” is one, as found in the passage in March relied upon by the Senior Arbitrator, which had been adopted there by the Chief Justice in his analysis of causation, albeit in the context of the NSW Civil Liability Legislation in association with questions of harm caused by a negligent act. The origins of that term were considered by the majority (French CJ, Gummow, Crennan and Bell JJ) in Strong v Woolworths Ltdt/as Big W (2012) HCA 5 (7 March 2012) where it was stated at [22]:
“The expression can be traced to developments in the law of nuisance in Scotland in the nineteenth century. In a case in which several factories had contributed to the pollution of a river, the defendant factory owner was held liable in nuisance for the discharge of pollutants from his factory which had “materially contributed” to the state of the river. Liability was not dependent upon proof that the pollutants discharged by the defendant’s factory alone would have constituted a nuisance.
In Bonnington Castings Ltd v Wardlaw, the expression “material contribution” was employed in determining the causation of the pursuer’s pneumoconiosis, a disease caused by the gradual accumulation of particles of silica in the lungs. There were several sources of exposure: the pneumatic hammers, the floor grinders and the swing grinders. The employer’s breach of statutory duty lay only in exposing the pursuer to the dust generated by the swing grinders. The greater proportion of the pursuer’s exposure to silica dust had come from the use of the pneumatic hammers. Lord Reid characterised the “real question” as whether the dust from the swing grinders “materially contributed” to the disease. The swing grinders had contributed a quota of silica dust that was not negligible to the pursuer’s lungs and had thus helped to produce the disease”.
In my opinion it was open to the Senior Arbitrator to conclude, as he did, that Mr Eastham suffers serious and permanent disablement and that the noise induced deafness materially contributes to that disablement. No error in adopting and applying the concept of “material contribution” when considering the question of causation of the disablement is made out. The finding that the disablement results, in the relevant sense, from the noise induced deafness that constitutes injury in the present claim, is one which demonstrates no error. The Senior Arbitrator’s refusal to draw an inference that Mr Eastham had “fully retired” given the history as recorded by the AMS was a conclusion open to him in all the circumstances and, again, no relevant error is demonstrated.
Ground seven challenges the Senior Arbitrator’s conclusion, as stated at [31] of Reasons, that “I do not accept any inference pursuant to Jones v Dunkel should be drawn against [Mr Eastham].” It had been asserted in argument that an inference adverse to Mr Eastham should have been drawn by the Senior Arbitrator that his case would not have been advanced by calling evidence from those persons noted at [35] above.
Support for this argument on appeal places reliance upon authorities noted at [40.4] of final submissions which concern evidentiary requirements in circumstances where application is made for extension of time in which to commence proceedings. Each of those cases involved, in differing degrees, reliance by the applicant upon advice in circumstances where there had been a failure to fully establish what had occurred. That is not the position in the present matter.
Mr Eastham’s evidence that he was ignorant of relevant matters was accepted by the Senior Arbitrator. As was argued before the Senior Arbitrator, the questions of time limitations were of no relevance to Mr Eastham’s earlier claims against the appellant. Mr Eastham had not asserted that no relevant information or advice had been given to him by the relevant doctors, his solicitors or the union. The suggested relevance of such “evidence” was raised in argument by the appellant. There was, in those circumstances, no expectation that “missing witnesses” would be expected to be called by Mr Eastham rather than the appellant.
In the present circumstances I conclude that the Arbitrator was correct to determine that the principle as stated in Jones v Dunkel should not be applied. His reasoning does not, as asserted, have the consequence that there was a reversal of the onus of proof. Ground seven fails.
Ground eight suggests error on the part of the Arbitrator in concluding that Mr Eastham’s evidence that he was unaware of the obligation to make a claim within six months of injury was “unchallenged evidence”. Submissions put in support of this assertion emphasise that the appellant’s s 74 notice, which had been served upon Mr Eastham on 5 January 2012, had specifically raised the question of application of s 261. The point is made in argument that all relevant employment records held by the appellant relating to Mr Eastham had been served in the course of the proceedings. Reference is again made to circumstances prevailing at both the teleconferences, with particular attention given to the appellant’s then stated reliance upon the provisions of s 261 of the 1998 Act. It is further submitted that Mr Eastham’s counsel had accepted, during exchanges with the Senior Arbitrator, that Mr Eastham’s case as founded upon the provisions of s 261 were under challenge. A number of other features of the evidence and conduct of the proceedings were relied upon in support of the assertion that Mr Eastham’s evidence of ignorance was the subject of challenge.
There can be no doubt that Mr Eastham’s entitlement to rely upon the provisions of s 261(4) and indeed s 261(6) was challenged by the appellant at the hearing before the Senior Arbitrator. It is implicit in the manner in which the Senior Arbitrator addressed submissions raised by the appellant that such challenge had been raised. At [35] of Reasons the Arbitrator expressed his acceptance of Mr Eastham’s evidence that he was unaware of the obligation under s 261(1) to make a claim within six months of injury. That evidence was, in my view, correctly stated by the Senior Arbitrator to have been “unchallenged evidence”. Cross-examination of Mr Eastham had been permitted by leave subject to such cross-examination being limited to the issue of Mr Eastham’s knowledge of his legal rights from time to time. Mr Eastham was not cross-examined concerning his statement concerning ignorance which was subsequently accepted by the Arbitrator. Not only was Mr Eastham not cross-examined, but there was an absence of direct evidence challenging his assertion of ignorance. The matters raised by the appellant concerning the availability of an inference that Mr Eastham’s evidence was improbable and should thus not be accepted had been addressed by the Senior Arbitrator and rejected by him. The appellant’s argument that Mr Eastham’s evidence should be rejected was not, in the Senior Arbitrator’s view, persuasive. There is no suggestion found in the reasons as expressed that the Senior Arbitrator concluded that he must accept Mr Eastham’s evidence simply because it is was unchallenged. Further, the appellant’s assertion that the rule in Browne v Dunn (1894) 6R 67 (HL) had, in the manner suggested, been applied against the appellant must be rejected. Ground eight fails.
CONCLUSION
For the reasons stated I conclude that the appeal must fail and the Senior Arbitrator’s decision should be confirmed. Appropriate orders appear below.
DECISION
The determination and orders found in the Senior Arbitrator’s Certificate of Determination dated 21 November 2012 is confirmed.
COSTS
The appellant is to pay Mr Eastham’s costs of the appeal.
Kevin O'Grady
Deputy President
13 June 2013
I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O'GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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