Blount v Penrith City Council
[2020] NSWWCCPD 15
•13 March 2020
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |
| CITATION: | Blount v Penrith City Council [2020] NSWWCCPD 15 |
| APPELLANT: | Garry Blount |
| RESPONDENT: | Penrith City Council |
| INSURER: | Allianz Australia Workers Compensation (NSW) Ltd |
| FILE NUMBER: | A1-2430/19 |
| ARBITRATOR: | Mr J Wynyard |
| DATE OF ARBITRATOR’S DECISION: | 4 September 2019 |
| DATE OF APPEAL DECISION: | 13 March 2020 |
| SUBJECT MATTER OF DECISION: | Application of State Transit Authority of New South Wales v Chemler [2007] NSWCA 249; 5 DDCR 286 and associated authorities – alleged errors in fact finding regarding a psychological injury, procedural fairness |
| PRESIDENTIAL MEMBER: | Deputy President Michael Snell |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Mr D Adhikary, counsel | |
| Carroll & O’Dea Lawyers | |
| Respondent: | |
| Ms S Warren, counsel | |
| Hall & Wilcox Lawyers | |
| ORDERS MADE ON APPEAL: | 1. The Certificate of Determination dated 4 September 2019 is revoked. 2. The matter is remitted for re-determination by another Arbitrator. |
INTRODUCTION
Garry Blount (the appellant) was employed by Penrith City Council (the respondent) as a full-time carpenter for a period of approximately 18 years. He performed maintenance on council facilities.[1] He allegedly developed a psychological injury “due to various incidents relating to asbestos, public health and safety issues (i.e. erecting goal posts)”. The Application to Resolve a Dispute (ARD) pleaded injury on 4 September 2017 and 4 April 2018. The second of these was described as a “re-emergence” due to the appellant’s concern regarding public health and safety issues, which were mismanaged.[2]
[1] Appellant’s statement 17/7/18, [11]–[13], Application to Resolve a Dispute, p 2.
[2] ARD, Pt 4, p 5.
The respondent issued a number of notices denying liability. Its most recent was dated 12 March 2019.[3] That notice dealt with injury dates of both 4 September 2017 and 4 April 2018. Liability was disputed on the basis of ‘injury’, s 9A of the Workers Compensation Act 1987 (the 1987 Act), s 11A(1) of the 1987 Act (based on ‘discipline’) and whether the effects of any injury had ceased.
[3] Reply, pp 49–53.
The matter was listed for arbitration hearing on 19 July 2019. Mr Adhikary appeared for the appellant and Mr Flett for the respondent. The appellant had pleaded a weekly claim from 30 October 2017 to 19 November 2017, and from 2 April 2018 to 17 June 2018. The appellant, without objection, amended the ARD to discontinue the claim for the first of these periods, and to amend the second period to run from 5 April 2018 to 4 June 2018.[4]
[4] Blount v Penrith City Council [2019] NSWWCC 292 (Reasons), [7]–[8].
The matter proceeded on the written material, there were no applications to call oral evidence or to cross-examine. Counsel for the parties addressed and the Arbitrator reserved his decision. The Commission issued a Certificate of Determination dated 4 September 2019 accompanied by 33 pages of reasons. The Arbitrator was not satisfied the appellant had “suffered a psychiatric or psychological injury”. He found that, if he was wrong in this first finding, the respondent had established a defence pursuant to s 11A of the 1987 Act. The Arbitrator entered an award in favour of the respondent. This appeal is brought against that decision.
ON THE PAPERS
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
THE ARBITRATOR’S REASONS
The Arbitrator noted that the weekly claim was limited to a period from 5 April 2018 to 4 June 2018. He said that a “proper appreciation of [the appellant’s] conduct, and whether he has been caused a psychological injury, requires a wider consideration of the history of the relationship between Mr Blount and the Council”.[5]
[5] Reasons, [9].
The Arbitrator referred to the appellant, in the current proceedings, alleging psychological injury because of the respondent’s discovery of asbestos on Council land at Werrington on 21 December 2017. He alleged he had suffered psychological injury due to being bullied and harassed over his attitude to asbestos and his safety concerns over the removal of goalposts.[6] The Arbitrator referred to the appellant’s statements dealing with his visit to the allegedly contaminated site at Werrington on 21 December 2017. The appellant said asbestos was identified at the site. He said there were “asbestos issues” at the Council with which he had been involved for “many years”. He said his concerns about the installation and removal of goalposts had also been dismissed.[7]
[6] Reasons, [10]–[11].
[7] Reasons, [18]–[23].
The appellant described being given a disciplinary letter dated 15 January 2018, which related to his conduct at the Werrington site on 21 December 2017. He said the investigation took place over two months. He said the issue about the goalposts also remained outstanding which added to his stress. The appellant stated that at a meeting on 4 April 2018, he was given a letter showing the outcome of the investigation. Three of the allegations against him were “substantiated” and the fourth was “partially substantiated”. The document said that no disciplinary action would be taken against him. He was reminded about the Council values and code of conduct. The appellant stated that he queried why no disciplinary action was taken given the seriousness of the findings. He said the decision put him “over the edge” and he stopped the meeting. Later that day he attended his general practitioner, Dr Chew, and was put off work. The appellant said he was subsequently certified fit for work from 4 June 2018. He was unable to actually resume until 18 June 2018, as he had developed an unrelated heel condition in the meantime.[8]
[8] Reasons, [24]–[31].
The Arbitrator referred to a supplementary statement of the appellant,[9] in which he reflected on his feelings. He described unease about the respondent’s attitude to “health and safety issues”. He described “concern for his co-workers”. He said it was “his responsibility to look after their health and safety”, and that he was also “concerned for the general public”. The appellant said he was “outraged” by the outcome of the disciplinary meeting; he described it as a “scurrilous attack on [his] reputation”. The appellant said that he was angry that no disciplinary action was taken against him, “the Council was trying to avoid further investigation because they knew their accusations would prove to be spurious”. He “regretted not advising ICAC about the manner in which Council addressed the finding of asbestos on 21 December 2017”. He described his treatment as “appalling”.[10]
[9] ARD, pp 7–9.
[10] Reasons, [32]–[39].
The Arbitrator then referred to material put on by the respondent, relating to a grievance lodged by the appellant in the NSW Industrial Relations Commission. It dealt with the Council’s actions regarding asbestos and the removal and installation of goalposts. The United Services Union became involved. The Arbitrator said that the appellant’s three statements had failed to mention this. The Arbitrator quoted from an investigation report of M & A Investigations dated 17 July 2018 which dealt with this grievance.[11] The Arbitrator described the grievance as being lodged in July 2017. The report referred to a letter from the respondent to the claimant and the United Services Union, which detailed the appellant’s concern about four sites. The letter gave details of the respondent’s actions to address asbestos issues at these sites in 2004, 2007, 2008 and 2015. A further site mentioned by the union was in Werrington, a stockpile of dirt that might be asbestos contaminated. The respondent advised it did not have a stockpile of dirt in Werrington. The union advised the stockpile was actually at the Kingsway, St Marys. The respondent advised this stockpile had been certified as clear of asbestos. The report stated that a Commissioner of the Industrial Relations Commission accepted the respondent’s position on these matters. The respondent, additionally, had purchased hydraulic equipment to remove and install goal posts with the use of the Council tractor. The appellant would not be involved in this process.[12]
[11] Reply, pp 200–201.
[12] Reasons, [40].
The Arbitrator quoted from items of correspondence from Mr Gordon, the respondent’s City Presentation Manager, to the appellant and the United Services Union, dealing with the appellant’s allegations about asbestos.[13] The detailed correspondence suggested that some of the allegations were inaccurate.[14]
[13] Reply, pp 76–85.
[14] Reasons, [41]–[46].
The Arbitrator described the statements of Geoffrey Payne, Adrian Estreich and Christine Woodbury, lay witnesses relied on by the respondent. Ms Woodbury was a human resources business partner with the respondent. She gave the appellant the letter dated 15 January 2018 and required that he attend a meeting on 23 January 2018. She took the appellant’s statement at that meeting. She conducted the preliminary assessment, finding that three counts were substantiated and the other partly substantiated. The outcome was contained in a letter dated 28 March 2018.[15] She said that a meeting with the appellant was held on 4 April 2018 where a decision by Mr Gordon, that no disciplinary action would be taken, was communicated to the appellant. She said the appellant became “visibly angry”. He indicated that “he wanted the warning as an outcome”. He left work after the meeting.[16]
[15] Reply, pp 88–90.
[16] Reasons, [55]–[58].
The Arbitrator set out the letter dated 15 January 2018[17], containing the allegations made against the appellant. These were that he:
(a) attended the Werrington site on 21 December 2017 “without authorisation or justified reason”;
(b) handled material that may have contained asbestos;
(c) was not wearing any personal protective equipment, and
(d) was told not to touch “possible Asbestos material and responded something to the effect of ‘it’s okay, its wet’.”[18]
[17] Reply, pp 86–87.
[18] Reasons, [59].
The Arbitrator set out, at length, a summary of the evidence that related to that aspect of the pleaded claim that was discontinued.[19]
[19] Reasons, [62]–[95].
The Arbitrator summarised the medical evidence. He referred to a number of consultations with Dr Chew in 2017, associated with psychological complaints and (predominantly) the issue about goalposts.[20] There were a number of consultations from 19 December 2017 that referred to asbestos issues, with references to anxiety and feeling victimised.[21] The Arbitrator referred to the note of a consultation with Dr Chew on 4 April 2018,[22] following the disciplinary meeting with Ms Woodbury:
“had disciplinary hearing today, about alleged asbestos handling issues, disappointing outcome, seeking legal advice increased anxiety symptoms due to this episode, not fit to go to work.”[23]
[20] Reasons, [96]–[106].
[21] Reasons, [107]–[109].
[22] ARD, p 91.
[23] Reasons, [113].
The Arbitrator referred to a note in Dr Chew’s notes on 16 May 2018:[24]
“Work stress claim ongoing, seeing D Bosanquet, ? Claim rejected lawyer needs new claim from 4/4/18, reflecting new causes for stress symptoms assoc with allegations about mishandling asbestos.”[25]
[24] ARD, p 92.
[25] Reasons, [116].
The Arbitrator referred to a response by Dr Chew to the insurer dated 26 June 2018.[26] The doctor diagnosed an Adjustment Disorder. The doctor said employment, “namely, bullying and harassment concerning management of several asbestos sites”, was the main contributing factor to this ‘disease’. He recorded “[the appellant] stated that management did not listen to his concerns and falsely accused him of mismanagement.” The doctor said “[t]he most important issue is the resolution of the industrial situation.”[27]
[26] ARD, pp 238–239.
[27] Reasons, [114]–[115].
The Arbitrator referred to the reports of Dr Bosanquet, a psychologist. His report dated 11 January 2019[28] described a history of telling management about asbestos sites. The appellant described bullying and harassment in those circumstances, and allegations against him of mismanagement. Dr Bosanquet’s diagnosis was of “extremely severe stress, severe anxiety and moderate depression”.[29]
[28] ARD, pp 50–52.
[29] Reasons, [117]–[119].
The Arbitrator referred to a report by Dr Reutens, psychiatrist, dated 26 October 2017,[30] arranged by the respondent. The history given to Dr Reutens primarily concerned the “issue of the goal posts” in about October 2017. There was also a history of “prior disputes” dating back to 2003. There was a history that in 2004, the appellant said he found a site with asbestos about which the Council did nothing. There was a history of the appellant calling WorkCover to have a children’s playground “fixed”, but the Council did nothing in response to “a clean up notice and a Health and Safety Notice”.[31]
[30] Reply, pp 214–226.
[31] Reasons, [121], [128]–[129].
The Arbitrator referred to a report from Associate Professor Robertson dated 11 January 2019,[32] commissioned by the appellant’s solicitors. The doctor referred to a history of the appellant’s concerns about asbestos in a children’s playground in 2007, which the appellant said he had “escalated” to WorkCover, and the appellant’s concern that the respondent had not complied with “all directions” in a costly remediation program. The report included a history of asbestos deposits in a reserve adjacent to a childcare centre in late 2017. It included reference to the resultant investigation.[33]
[32] ARD, pp 42–49.
[33] Reasons, [133]–[136].
The Arbitrator said Associate Professor Robertson’s view was that there was no current psychiatric diagnosis, and that “[a]ccepting Mr Blount's version of events, the stressors around discovery of asbestos deposits and his experience of his employer’s failed duty of care were the main cause of his distress.”[34]
[34] Reasons, [141], [143].
The Arbitrator referred to the report of Dr Teoh, psychiatrist, dated 12 September 2018,[35] commissioned by the insurer. Dr Teoh had a history of the alleged detection of asbestos at the Werrington site in 2017, and of the appellant being “emotionally distressed” on receiving a letter that he had acted without authority. He said the appellant was “angry with the manner with which he was treated at work”. Dr Teoh said “Mr Blount was unhappy and emotionally distressed about the disciplinary action. The disciplinary action taken by the Council is a predominant cause of his emotional distress.”[36]
[35] Reply, pp 230–235.
[36] Reasons, [145]–[148], [154].
The Arbitrator summarised the submissions of both parties.[37]
[37] Reasons, [155]–[178].
The Arbitrator said that the discontinuance of the weekly claim for the period from 30 October 2017 to 19 November 2017 sought to remove the dispute about that period as “a relevant factor in [his] determination”.
The Arbitrator said that the “most remarkable aspect of Mr Blount’s evidence” is that he did not, in four statements, refer to the significant dispute which he began by lodging a grievance regarding the Council’s handling of asbestos. A history of this was also not given to any of the medico-legal specialists. The grievance had major ramifications for the respondent. The respondent was required to attend the Industrial Relations Commission in August, September and November 2017. The respondent, through Mr Gordon, had to correspond with the United Services Union, pointing out that [the appellant’s] allegations were not soundly based. The Arbitrator said that “on one view of the evidence, [the appellant’s] actions were mischievous”.[38]
[38] Reasons, [181], [184]–[186].
The Arbitrator observed that the “formal grievance” appeared to have been lodged on 28 July 2017, and the respondent appeared to be “suspicious” of the appellant’s motivation for doing so. The complaint about a site at a Leonay playground involved work done in 2007 at a site where the appellant had worked. The Council indicated it was concerned that the matter had been raised ten years later. The Arbitrator accepted that “none of the sites mentioned by [the appellant] yielded any evidence of asbestos mismanagement”.[39]
[39] Reasons, [189]–[191].
The Arbitrator observed that the appellant attended the first hearing in the Industrial Relations Commission related to his grievance, but did not attend on the three hearing days that followed (29 September 2017, 13 November 2017 and 27 November 2017). He was off work on workers compensation for a psychological condition on the first and second of these, and on annual leave for the third. The Arbitrator said that all of the allegations made in these proceedings were “baseless”. The Arbitrator described the appellant’s accusations about the respondent’s mismanagement of asbestos as “based on unsubstantiated rumour and ignorance of [the respondent’s] protocols and records concerning asbestos management”.[40]
[40] Reasons, [193], [195]–[196].
The Arbitrator referred to the issue regarding goalposts. He said the dispute arose because of the appellant’s thoroughness and perseverance regarding whether a dogman/rigger was required for the task. Mr Blount was correct. He received an apology from Mr Morris, and an admission from Ms Toffoli that she had made an error. The Arbitrator accepted that on one occasion, the appellant made comments to Ms Toffoli in an abusive, nasty and unprofessional manner.[41] The Arbitrator accepted the opinion of Drs Reutens and Teoh, that the finding of a psychological condition depended on acceptance of the appellant’s version of events. He said he did not accept the appellant had suffered a psychological injury because he was “unsupported by management”. “The evidence shows that he was supported, and that appropriate members of management apologised to him.”[42] The Arbitrator said the evidence did “not sustain Dr Reutens’ finding that there was conduct on behalf of the respondent that could be interpreted as being unsupportive”.[43]
[41] Reasons, [197]–[199].
[42] Reasons, [208]–[209].
[43] Reasons, [211].
The Arbitrator said he did not accept that there was a psychological condition in place at any time from 4 September 2017 to 17 October 2017.[44] The Arbitrator rejected Dr Chew’s opinion on this period of incapacity. He said Dr Chew, as a general practitioner, did not have “any expertise in psychiatric medicine”. In his report of 27 September 2017, Dr Chew said the diagnosis could possibly include a number of suggested conditions. Additionally, in forming his opinion, Dr Chew accepted the appellant’s version of events that he was “instructed to perform duties which clearly broke the law”. The Arbitrator described this as a “simplistic exaggeration of the facts”. He also said the opinion of Dr Chew “could not be regarded as being objective”. General practitioners could “sometimes be over enthusiastic in espousing” a patient’s cause. The Arbitrator said that “the respondent had had a lot of trouble with [the appellant]”.[45]
[44] Reasons, [213].
[45] Reasons, [215]–[216].
The Arbitrator said he was not satisfied the appellant suffered from any psychiatric or psychological condition on 21 December 2017 (the date of the site visit at Werrington when asbestos was allegedly discovered). He said this left an issue “as to whether the disciplinary proceedings have caused Mr Blount to suffer a psychiatric or psychological condition in any event”.[46]
[46] Reasons, [217]–[218].
The Arbitrator referred to the case the appellant sought to make:
“Mr Blount again relied upon the evidence of Dr Chew. The relevant entries in the clinical notes began on 18 January 2018, when Dr Chew noted that there were problems with asbestos contamination on council owned land and that Mr Blount was feeling very anxious about the lack of action from the respondent. This was not correct. Ms Woodbury’s evidence is that on 18 January 2018 she handed to Mr Blount the notice to attend a meeting dated 15 January 2018. This was confirmed by Mr Blount himself in his statement of 17 July 2018. Mr Blount made no attempt to tell Dr Chew about this development. The problems with asbestos contamination and the allegation about lack of action from the Council had all been dealt with in the Industrial Relations Commission, and Mr Blount and the Union were well aware of the outcome.”[47]
[47] Reasons, [219].
The Arbitrator said it was not until 4 April 2018, following the disciplinary hearing, that Dr Chew recorded anything about the disciplinary matter. On 26 June 2018 (the appellant having been certified fit for full duties since 4 June 2018), Dr Chew thought the appellant probably had an adjustment disorder, “and that bullying and harassment by the respondent concerning the management of several asbestos sites was the main contributing factor”. The Arbitrator described this as a reference to “the broader enquiry caused by Mr Blount’s grievance in July 2017”. The Arbitrator said this did “not purport to connect Mr Blount’s lingering condition with the disciplinary proceedings”. The Arbitrator referred to his reasons for not accepting Dr Chew’s opinion on earlier matters (see [31] above) and said the same comments applied to the claim commencing from 4 April 2018. Additionally, the Arbitrator said he was not satisfied Dr Chew had a correct history.[48]
[48] Reasons, [222]–[223].
The Arbitrator referred to the opinion of Dr Bosanquet. The history recorded by the psychologist was of the July 2017 grievance which was taken to the Industrial Relations Commission. The history being of those events, it was not helpful in dealing with the period claimed from 4 April 2018.[49]
[49] Reasons, [224]–[225].
The Arbitrator referred to Associate Professor Robertson, who reported on 11 January 2019. The Arbitrator said that Associate Professor Robertson made no psychiatric diagnosis when he examined the appellant, and there was no allegation that such a condition was present at that time. The Arbitrator said that the Associate Professor was, accordingly, dependent on the opinions of other medical professionals who had seen the appellant when the condition was allegedly present. The Arbitrator said he had already regarded the material from Dr Chew and Dr Bosanquet as unhelpful, as their recorded histories were not “relevant to the present claim”. The Arbitrator said that it was not established there was a psychological injury from the proceedings in the Industrial Commission. The appellant was given time off by Dr Chew in relation to the “goalposts issues”, but the Arbitrator had found those did not cause a psychological condition. The Arbitrator said that the Associate Professor was accordingly dependent on his own clinical experience and expertise to determine, on the appellant’s history, whether the appellant suffered a psychological injury. There were some anomalies in the history regarding when the goalpost issue arose. There was an anomaly regarding when the appellant was placed under investigation. The history taken by the Associate Professor was otherwise generally consistent with the circumstances that led to the disciplinary action. [50]
[50] Reasons, [226]–[230].
The Arbitrator said that Associate Professor Robertson’s report was “thorough, well balanced and reasonable”. The Associate Professor thought employment had been the main contributing factor to the alleged psychiatric injury and that the respondent’s “failed duty of care” was the main cause of the appellant’s distress. The Associate Professor also said that he “could not take a position as to which version of events should be accepted”, and that the connection between the duty of care and the main contributing factor was reliant on acceptance of the appellant’s version of events. The Arbitrator said that he had not accepted the appellant’s version of events regarding either of the sequences of events relied on (the asbestos deposits and grievance procedure, and the episode with the goalposts). In light of this the Arbitrator rejected the Associate Professor’s opinion regarding three points. The first was that there was psychopathological distress over workplace safety. The second was that the disciplinary action was “vexatious and punitive”. The third was that there was an inconsistency between the outcome of the inquiry and the respondent’s decision not to impose a warning.[51]
[51] Reasons, [231]–[232].
The Arbitrator said the disciplinary action taken was reasonable, given the vexatious nature of the appellant’s personality. The appellant’s “enthusiasm for safety issues” led him to take a combative attitude to the respondent, “too ready to make unjustified allegations”. The appellant had no special authority in respect of asbestos or safety issues. He took these concerns upon himself. The Arbitrator said that the appellant’s unusual reaction to disciplinary action being taken against him was caused by frustration at having nothing to appeal against.[52]
[52] Reasons, [233]–[236].
The Arbitrator said:
“In the final analysis, I accept the opinion of Dr Ben Teoh. Although his opinion was given on the mistaken basis that Mr Blount was still off work, I accept the force of Dr Teoh’s argument that Mr Blount’s presentation was not consistent with a psychiatric diagnosis, but that the work-related issues that caused emotional stress and frustration.”[53]
[53] Reasons, [237].
The Arbitrator then considered whether, if his conclusion on the ‘injury’ issue was wrong, the respondent, in any event, had a defence pursuant to s 11A(1) of the 1987 Act. The Arbitrator said that the appellant was not suffering from any psychological condition, when he was subjected to the disciplinary process. In briefly expressed reasons, he concluded that the psychological injury was wholly or predominantly caused by the respondent’s relevant reasonable actions. He accepted, from Dr Chew’s clinical note on 4 April 2018, that it was the disciplinary hearing that caused the appellant to seek medical attention. He considered this consistent with the clinical note on 16 May 2018, when Dr Chew was told a new claim was required naming 4 April 2018 as the date of injury, reflecting new causes associated with allegations about mishandling asbestos.[54]
[54] Reasons, [240]–[241].
The Arbitrator rejected a submission by the appellant that the respondent’s actions were not ‘reasonable’ on the basis of the delay in notifying the appellant of the outcome of the investigation. Ms Woodbury, who conducted the investigation, was on leave from 29 January 2018 to 19 February 2018. The Arbitrator said this did not taint the process. The Arbitrator noted the outcome could have been delivered in March 2018, except that the appellant himself was off work from 10 March 2018 to 4 April 2018, on workers compensation for his heel condition. The Arbitrator said that a face-to-face meeting was necessary, having regard to the “gravity of the charges” and the “leniency that the employer was nonetheless expending”. The Arbitrator found, in the alternative, that a defence pursuant to s 11A(1) of the 1987 Act was made out.
An award was entered in favour of the respondent.
GROUNDS OF APPEAL
The following grounds of appeal are raised:
(a) The Arbitrator committed an error of fact and/or law by failing to find that the [appellant’s] injury arose out of or in the course of his employment by impermissibly scrutinising the appellant’s perception of events. (Ground No. 1)
(b) The Arbitrator has committed errors of law by failing to provide the appellant with procedural fairness by making adverse credibility findings about him and Dr Chew, in circumstances where:
(i)their credibility was not challenged by the respondent, and
(ii)they were not provided with an opportunity to respond to the adverse finding made. (Ground No. 2)
(c) The Arbitrator committed an error of fact and/or law by placing impermissible reliance upon extracts from the clinical records of Dr Chew and by then making findings that were not supported by the evidence. (Ground No. 3)
(d) The Arbitrator committed an error of fact by not considering whether the whole or predominant cause of the appellant’s psychological injury was the respondent’s actions with respect to discipline and/or performance appraisal. (Ground No. 4)
(e) The Arbitrator committed an error of law by reversing the onus of proof from the respondent onto the appellant when determining whether the respondent’s actions were reasonable for the purposes of s 11A. (Ground No. 5)
(f) The Arbitrator committed an error of law by finding the respondent’s actions with respect to discipline and/or performance appraisal were reasonable. (Ground No. 6)
LEGISLATION
Section 11A of the 1987 Act provides:
“11A No compensation for psychological injury caused by reasonable actions of employer
(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers.
(3) A psychological injury is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.
(4) This section does not affect any entitlement to compensation under this Act for an injury of a physical nature even if the injury is a physical symptom or effect of a psychological injury, so long as the injury is not merely a physiological effect on the nervous system.
(5) (Repealed)
(6) This section does not extend the definition of injury in section 4. In particular, this section does not affect the requirement in section 4 that a disease is not an injury unless it is contracted by the worker in the course of employment.
This section does not affect section 9A (No compensation payable unless employment substantial contributing factor to injury).
(7) In the case of a claim for weekly payments of compensation in respect of incapacity for work resulting from psychological injury, the medical certificate required to accompany the claim must (in addition to complying with the requirements of section 65 of the 1998 Act) use, for the purpose of describing the worker’s condition, accepted medical terminology and not only terminology such as “stress” or “stress condition”.
(8) If a claim is deficient because subsection (7) has not been complied with and the insurer or self-insurer concerned notifies the worker in writing of the deficiency (including details of what is required to comply with that subsection) as soon as practicable after receiving the deficient claim then (unless the insurer or self-insurer waives that requirement)—
(a) the claim is not considered to have been duly made for the purposes of section 93 of the 1998 Act until subsection (7) is complied with, and
(b) proceedings before the Commission cannot be commenced in respect of the claim until subsection (7) is complied with.”
THE NATURE OF AN APPEAL PURSUANT TO SECTION 352(5)
Section 352(5) of the 1998 Act, pursuant to which this appeal is brought, provides:
“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.”
In Raulston v Toll Pty Ltd,[55] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[56] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[57]) to the nature of the appeal process pursuant to s 352 of the 1998 Act:
“(a) An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b) Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c) It may be shown that an Arbitrator was wrong ‘by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong’.”[58]
[55] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[56] (1966) 39 ALJR 505, 506.
[57] [1996] HCA 140; 140 ALR 227.
[58] Raulston, [19].
In Davis v Ryco Hydraulics Pty Ltd Keating P observed that these principles “have been consistently applied in the Commission”.[59] The Deputy President in Raulston also cited the following passage from Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd:[60]
“… in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.”[61]
[59] [2017] NSWWCCPD 5, [67].
[60] [2001] FCA 1833, [28].
[61] Raulston, [20].
In Northern NSW Local Health Network v Heggie[62] Sackville AJA said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518-519”.[63]
GROUND NO. 1
[62] [2013] NSWCA 255; 12 DDCR 95 (Heggie).
[63] Heggie, [72].
Appellant’s submissions
The appellant refers to State Transit Authority of New South Wales v Chemler, from which he quotes the following passage:
“If conduct which actually occurred in the workplace was perceived as creating an offensive or hostile working environment, and a cognizable injury followed, it was open to the Commission to conclude that causation was established.”[64]
[64] [2007] NSWCA 249; 5 DDCR 286 (Chemler) per Basten JA, [69].
The appellant also quotes from Roche DP in Attorney General’s Department v K, in which the Deputy President said:
“The critical question is whether the event or events complained of occurred in the workplace. If they did occur in the workplace and the worker perceived them as creating an ‘offensive or hostile working environment’, and a psychological injury has resulted, it is open to find that causation is established. A worker’s reaction to the events will always be subjective and will depend upon his or her personality and circumstances. It is not necessary to establish that the worker’s response was ‘rational, reasonable and proportional’ …”.[65]
[65] [2010] NSWWCCPD 76; 8 DDCR 120 (A-G v K), [54].
The appellant submits that the Arbitrator “has impermissibly placed the [a]ppellant’s perception of events in issue”.[66] The appellant refers to four specific “examples” in which the Arbitrator is submitted to have erred in this way.
[66] Appellant’s submissions, [7]–[11].
The first example
The appellant quotes from the reasons at [209]:
“I do not accept that Mr Blount was caused a psychological injury because he was unsupported by management. To the contrary the evidence shows that he was supported, and that appropriate members of management apologised to him. Nor do I think this is a case involving perception. The evidence makes it clear that Mr Blount was unhesitating in his enrolling the Union to his causes. The evidence regarding the Industrial Relations Commission issue shows that the respondent was obliged to report not only to Mr Blount but to the Union.”
The appellant submits it was irrelevant that the appellant had been apologised to, or that he was unhesitating to enrol the Union to his cause. It ignored the appellant’s perception of, and reaction to the events, which are “subjective and cannot be judged on an objective basis”. Management may have apologised to him, but the appellant “still perceived that he was being unsupported”. The appellant submits this approach flowed into the finding at [211] of the reasons, where the Arbitrator concluded the evidence did not sustain Dr Reutens’ opinion that the evidence did not support that doctor’s view that there was conduct of the respondent that could be interpreted as unsupportive.
The second example
The appellant refers to the reasons at [215], where the Arbitrator referred to a history recorded by Dr Chew that the appellant was instructed to perform duties “which clearly broke the law”. The Arbitrator described this as “a simplistic exaggeration of the facts”. The appellant submits the history represented the appellant’s perception. The appellant also submits:
“The error is compounded by the fact that the Arbitrator found at [197]–[198] and [206] of his Reasons that the [a]ppellant was correct when he identified an issue with regard to the handling of asbestos and the [a]ppellant was also correct that asbestos, in the particular circumstances, was not to be handled without a dogman/rigger.” (emphasis in original).
The appellant submits that again it was the appellant’s “perception in such circumstances that he had been instructed to perform duties that clearly broke the law”.[67]
[67] Appellant’s submissions, [17]–[21].
The third example
The appellant refers to the reasons at [219]. The Arbitrator referred to Dr Chew’s clinical entry on 18 January 2018, which included a history that “there were problems with asbestos contamination on council owned land”, and that the appellant “was feeling very anxious about the lack of action from the respondent”. The respondent submits this represented the appellant’s “subjective perception” and that the Arbitrator’s scrutiny of that perception was “impermissible”. The perception did not have to be rational.[68]
[68] Appellant’s submissions, [22]–[23].
The fourth example
The appellant refers to the reasons at [235] to [236]. At [235], the Arbitrator said:
“In each narrative Mr Blount has been prepared to make provocative statements, and to claim that he has suffered a psychological injury when those statements have proved to be incorrect, or exaggerated.”
The appellant quotes the following part of what the Arbitrator said at [236]:
“His allegation that he was concerned because he had been told by a WorkCover representative that he could go to jail if he proceeded in contravention of the requisite rules is inherently unbelievable, not because such an outcome could not occur, but because the problem had been solved or was in the course of being solved when Mr Blount had that conversation. It is most unlikely that a person of Mr Blount’s experience would have been concerned in those circumstances.”
The appellant submits the above “highlight the fact that the Arbitrator assessed the [appellant’s] perception of real events to a ‘reasonable, rational and proportional’ standard.”
More generally, the appellant submits the above examples were relied upon by the Arbitrator, in finding the appellant did not suffer injury as alleged (referring to the reasons at [232] to [233]). The appellant refers to the reasons at [180] where it was stated that the appellant:
“… was a strong advocate for his point of view, but that sometimes that advocacy either overcame accuracy, or disposed him to ignore relevant facts and thus give confusing and inconsistent evidence.”
The respondent’s submissions
The respondent submits the Arbitrator engaged in “an in-depth review of the evidence”. There was a complex factual history spanning many years which impacted upon the claim brought. It was necessary to “weigh and compare the lay evidence” in determining the weight to be given to the various medical opinions. At first instance, the appellant did not submit that the evidence of Ms Toffoli, Ms Woodbury, Mr Payne or Mr Estreich (in the respondent’s case) should not be accepted. It did not submit that the appellant’s evidence should be preferred to those lay witnesses.[69]
[69] Respondent’s submissions, [12]–[15].
The respondent submits the Arbitrator dealt with and analysed the relevant medical evidence. The respondent submits the Arbitrator’s finding on ‘injury’ was open on the evidence. The respondent submits the Arbitrator applied correct legal principles in dealing with the issue of ‘injury’.[70]
[70] Respondent’s submissions, [16]–[17].
Consideration
The principles set out in Chemler and A-G v K, on which the appellant relies, are regularly applied in the Commission. The starting point in the passages quoted at [49] to [50] above is that the events actually occurred in the workplace.
The reference to the appellant feeling “unsupported by management” (the first example)[71] is taken from the history recorded by Dr Reutens.[72] In Dr Reutens’ report, the “Presenting Complaint” is recorded as the issue in October 2017 regarding whether a dogman or rigger was required, in carrying out the work of removing goal posts. The reference to feeling “unsupported by management” was recorded as part of the doctor’s summary of “Background to Workplace Incidents”.[73] It is of a general and non-specific nature. In the doctor’s report, it was followed by multiple examples of such situations.[74]
[71] See Reasons, [128]–[130].
[72] Reply, p 218.
[73] Reply, p 218.
[74] Reply, pp 218–219.
These predominantly did not relate to factual matters raised in the current proceedings. Dr Reutens described a history that the appellant said he was told to “back off” after complaining of people smoking, when a manager said he would “drop” the appellant. The appellant said he was given problem people as his trade assistants. In 2005 a trade assistant drew a knife across the appellant’s throat. There was an 18-month investigation. The appellant said he was depressed at the time and saw a psychologist with Post-Traumatic Stress Disorder. He believed police fobbed him off at the time because of a link between two local stations and the respondent. There was the continued placement of difficult trade assistants. In 2007 another trade assistant went to bash him. “Once again there was no outcome.”
Dr Reutens’ background history referred to an “ongoing issue regarded asbestos cover-ups”. The history referred to an incident where the respondent “did nothing” when asbestos was found in 2004. It also referred to asbestos at a children’s playground where “his supervisors did not pursue it so he had to call WorkCover”. He said the respondent was issued with a clean-up notice which was not complied with. This brief background history, relating to the appellant’s concerns regarding asbestos was, in a general sense, consistent with the history of matters raised in the grievance lodged with the Industrial Relations Commission, which was at that stage ongoing (see [27] to [29] above). The Arbitrator made a finding that all of the allegations the subject of those proceedings were “baseless” (see [29] above). The appellant, on this appeal, does not specifically challenge the availability of that factual finding.
It was necessary, for the appellant to succeed, that he establish the occurrence of ‘injury’. The Arbitrator’s discussion in the reasons at [209] went to the question of whether the appellant had done so. The Arbitrator observed, in the reasons at [208], that having regard to the reports of both Dr Teoh and Associate Professor Robertson, the finding of a psychological condition was dependent on the appellant’s version of events being accepted. Whether the evidence supported the past history of feeling unsupported by management, recorded by Dr Reutens, was one small part of that enquiry. The Arbitrator identified the respondent’s actions in respect of the goalpost issue, where the respondent ultimately accepted the position the appellant had adopted, and management apologised to him. The Arbitrator considered this was consistent with the appellant being supported by management. This view was reasonably open on the evidence.
The generally expressed history of feeling “unsupported by management” is a summation, by Dr Reutens, of multiple matters identified in her history, the vast majority of which are not alleged to constitute ‘injury’ in the current claim. One aspect of the past history, raised as part of that background, was the respondent’s handling of asbestos dating back to 2004. This was rejected by the Arbitrator on the basis it was not supported by the evidence.[75] A finding of ‘injury’ on the basis of the other allegations referred to in Dr Reutens’ background history was not available on the claim as brought and pleaded. The appellant did not argue, before the Arbitrator, that an ‘injury’ finding should be made on such a basis. The Arbitrator’s reasons at [211] are also relevant:
“The evidence does not sustain Dr Reutens’ finding that there was conduct on behalf of the respondent that could be interpreted as being unsupportive.” (emphasis added)
[75] Reasons, [191], [195]–[196].
The above is consistent with the Arbitrator turning his mind to whether the appellant may have held such a perception on the evidence. The reference in the reasons at [209] to whether the matter was a “case involving perception” is also consistent with the Arbitrator being alive to the principles in Chemler and A-G v K, and reasoning in the light of those principles. The first of the examples does not assist the appellant.
The second “example” relied on by the appellant is the Arbitrator’s rejection of the appellant’s history to Dr Chew, that the appellant was “instructed to perform duties which clearly broke the law”. The Arbitrator, dealing with Dr Chew’s evidence, said:
“However, I have some reservations about accepting Dr Chew’s opinion. Firstly, he is a general practitioner and does not hold any expertise in psychiatric medicine. Secondly in his report of 27 September 2017 he qualified as [sic, his] opinion by saying that the diagnosis could ‘possibly’ include a number of suggested conditions. Thirdly Dr Chew accepted Mr Blount’s version of events in which he said he was instructed to perform duties which clearly broke the law. As I have indicated, that is a simplistic exaggeration of the facts. There was no suggestion that he had been instructed to perform duties which clearly broke the law.”[76]
[76] Reasons, [215].
The appellant does not argue on appeal that he was instructed to perform duties of such a nature. The appellant argues it was his perception that he was instructed to perform such duties. The Arbitrator specifically dealt with the issue of whether the appellant held such a belief. In the reasons at [236], the Arbitrator said:
“That attitude [of the appellant] carried with it a requirement to be responsible, a good illustration of which was his discussions with management when he discovered that a dogman had to be present. His allegation that he was concerned because he had been told by a WorkCover representative that he could go to jail if he proceeded in contravention of the requisite rules is inherently unbelievable, not because such an outcome could not occur, but because the problem had been solved or was in the course of being solved when Mr Blount had that conversation. It is most unlikely that a person of Mr Blount’s experience would have been concerned in those circumstances.”
Contrary to the appellant’s submissions, this did not involve the Arbitrator assessing the appellant’s perceptions of real events by reference to a “reasonable, rational and proportional” standard.[77] It involved the Arbitrator assessing the credibility of what the appellant said on the issue by reference to the appellant’s state of knowledge (the problem was in the course of being solved) and the appellant’s level of experience (a qualified carpenter of 18 years’ experience, with a builder’s licence, leading a team).[78] The effect of decisions such as Chemler is not that a decision maker is obliged to accept everything that is said by a worker in a psychological injury case, on the basis that it represents ‘perception’.
[77] Appellant’s submissions, [26].
[78] ARD, p 2, [11]–[14].
There is also a submission relating to Example 2 that says “the [a]ppellant was also correct that asbestos, in the particular circumstances, was not to be handled without a dogman/rigger” (emphasis in original). This confuses the two issues raised between the parties, being the management of asbestos and the role of a dogman/rigger in the erection and removal of football goal posts. The submission refers to the reasons at [197] to [198] and [206].[79] The submission does not make sense. Example 2 does not assist the appellant.
[79] Appellant’s submissions, [20]–[21].
Example 3 refers to the reasons at [219], which state:
“Mr Blount again relied upon the evidence of Dr Chew. The relevant entries in the clinical notes began on 18 January 2018, when Dr Chew noted that there were problems with asbestos contamination on council owned land and that Mr Blount was feeling very anxious about the lack of action from the respondent. This was not correct. Ms Woodbury’s evidence is that on 18 January 2018 she handed to Mr Blount the notice to attend a meeting dated 15 January 2018. This was confirmed by Mr Blount himself in his statement of 17 July 2018. Mr Blount made no attempt to tell Dr Chew about this development. The problems with asbestos contamination and the allegation about lack of action from the Council had all been dealt with in the Industrial Relations Commission, and Mr Blount and the Union were well aware of the outcome.”
The appellant again submits this is an example of his perception being “impermissibly scrutinised”. The appellant submits his subjective perception was of ongoing problems with asbestos and a lack of action from the respondent. It is submitted the perception need not have been rational.[80]
[80] Appellant’s submissions, [22]–[23].
The Arbitrator was entitled to assess the appellant’s evidence. On 18 January 2018, Ms Woodbury handed the appellant a letter dated 15 January 2018.[81] The letter set out four disciplinary allegations which the appellant would have an opportunity to respond to at a meeting to be held on 23 January 2018. The letter informed the appellant that the allegations were “serious”. The reasons contrast this with the history recorded by Dr Chew on 18 January 2018, which was of problems with asbestos contamination and a lack of action from the respondent which made the appellant anxious. The disciplinary letter and meeting were not mentioned in the recorded clinical note on 18 January 2018. That history was, in this passage, also contrasted with the evidence accepted in the Industrial Relations Commission in 2017 (see [27] to [29] above), that the appellant’s allegations regarding asbestos were not soundly based.
[81] Reply, pp 86–87.
Against the above background, the Arbitrator described the entry in the clinical note dated 18 January 2018 as “one of several inconsistencies that have led me to be somewhat circumspect about [the appellant]”.[82] The Arbitrator referred to an entry in Dr Chew’s notes on 20 February 2018, that referred to the appellant feeling victimised, and also recorded no developments in the appellant’s “workers comp claim”. It did not refer to the ongoing disciplinary investigation. The Arbitrator said that the first mention of the disciplinary hearing in Dr Chew’s notes was on 4 April 2018, after the meeting that day at which the appellant was advised of the outcome. The Arbitrator said that he was “not assisted” by the evidence of Dr Chew in the “current claim” (the weekly claim from 5 April 2018 to 4 June 2018[83]).[84] The Arbitrator described the material from Dr Chew and Dr Bosanquet as “unhelpful” as neither took histories relevant to that claim.[85]
[82] Reasons, [220].
[83] Reasons, [8].
[84] Reasons, [221]–[223].
[85] Reasons, [228].
In A-G v K, Roche DP said:
“As the above authorities demonstrate, the Arbitrator did not have to consider if the worker’s perception was erroneous or irrational. He had to determine if the events complained of actually occurred and, if they did occur, whether the worker’s injury resulted from them.”[86]
[86] A-G v K, [58].
The Arbitrator’s discussion of the notes of Dr Chew (and Dr Bosanquet) plainly went to whether events at work associated with the disciplinary proceedings caused a psychological injury. It was relevant to whether events prior to 4 April 2018 were causative of the alleged injury, bearing in mind the absence of relevant recorded contemporaneous complaint. It was relevant to the weight that could be given to the opinion of Dr Chew, having regard to the nature and extent of the complaints recorded in Dr Chew’s material.[87] The Arbitrator ultimately concluded that he found the evidence of both Dr Chew and Dr Bosanquet “unhelpful”.
[87] Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11; 8 DDCR 399, [82]–[83].
The Arbitrator, in the passage quoted by the appellant in Example 3, was not impermissibly scrutinising the appellant’s evidence of perception. He was assessing the medical evidence, including the lay material on which it was based, to determine the weight (if any) to be ascribed to such evidence in considering whether the appellant had established ‘injury’. The third example does not assist the appellant.
The matters raised by the appellant, in his fourth example, are dealt with above in the discussion dealing with the second example.
Ground No 1 fails.
GROUND NO. 2
Appellant’s submissions
This ground challenges the availability of “adverse findings” made by the Arbitrator relating to the appellant and Dr Chew. The appellant submits the evidence of neither of these witnesses was “challenged by way of cross-examination, or during submissions”. The appellant submits the Reply did not indicate that an attempt would be made to impugn their evidence.[88]
[88] Appellant’s submissions, [30].
The appellant’s submissions on this ground deal initially with the position of the appellant. The appellant submits the Arbitrator at [180] indicates he has doubts about the appellant’s veracity. The appellant then refers to the reasons at [216]. The appellant submits that, in this passage, the Arbitrator made adverse credit findings about the appellant, he questioned the appellant’s veracity, and indicated the appellant “was [a] person that would provide a fabricated history or provide a history in a manner designed to gain advantage”. It is submitted the appellant was not cross-examined on this basis. The appellant says that the respondent did not seek to put his credibility in dispute, either through documents it lodged or in submissions.[89]
[89] Appellant’s submissions, [31]–[35].
The appellant refers to Kuhl v Zurich Financial Services Australia Ltd, in which the plurality said:
“65. … Whether the plaintiff has demonstrated that the trial judge was right or wrong about that will be examined below. But it is one thing to say that a plaintiff’s evidence is inadequate to make out a claim; it is another thing to say that a plaintiff's evidence is not only inadequate, but that it has been tailored by deliberate non-responsive suppression.
66. It is not sound judicial technique to criticise a party-witness for deliberately withholding the truth in a fashion crucial to a dismissal of that party’s claim unless two conditions are satisfied. First, reasons must be given for concluding that the truth has been deliberately withheld. Secondly, the party-witness must have been given an opportunity to deal with the criticism.”[90]
[90] [2011] HCA 11; 243 CLR 361 (Kuhl), [65]–[66].
The appellant also quotes the following passage from Re Refugee Review Tribunal; Ex parte Aala:
“One of the fundamental rules of the fair hearing doctrine is that a decision-maker should not make an adverse finding relevant to a person’s rights, interests or legitimate expectations unless the decision-maker has warned that person of the risk of that finding being made or unless the risk necessarily inheres in the issues to be decided. It is a corollary of the warning rule that a person who might be affected by the finding should also be given the opportunity to adduce evidence or make submissions rebutting the potential adverse finding.”[91] (excluding footnotes)
[91] [2000] HCA 57; 204 CLR 82; 176 ALR 219; 75 ALJR 52 (Aala), [101].
The appellant submits the adverse credibility findings against him should not have been made.[92]
[92] Appellant’s submissions, [39].
In respect of Dr Chew, the appellant refers to the passage at [216] of the reasons, in which the Arbitrator said that he did not regard Dr Chew’s comments as “unbiased or objective”. It is submitted the doctor’s evidence was not challenged on this basis and he had no opportunity to respond to such criticism. The appellant refers to the Arbitrator’s reference to Dr Chew contacting the appellant about taking over his case. The appellant submits it is unclear why the Arbitrator regarded this as “infecting Dr Chew’s opinion”. The appellant submits this credibility finding was relied on in findings at [220], [223], [232] and [235] to [236] to “essentially reject the evidence of the [a]ppellant and Dr Chew”.
The appellant submits the failure to afford procedural fairness affected the result, and the matter should be remitted for rehearing by another Arbitrator.
The appellant put on supplementary submissions following receipt of the transcript. In these the appellant submits that the transcript confirms there was no cross-examination or submission that sought to impugn the credit of the appellant or Dr Chew.[93]
[93] Appellant’s supplementary submissions, [2].
Respondent’s submissions
The respondent submits that where documentary evidence is adduced it is open to an Arbitrator to determine credit issues in the absence of oral evidence or cross-examination. There is no legal right to cross-examine, and evidence can be accepted or rejected on the basis of credit in the absence of cross-examination. The respondent refers to Aluminium Louvres & Ceilings Pty Limited v Zheng.[94] The respondent submits an Arbitrator can reject evidence, uncontested by cross-examination, where it is “inherently inconsistent or where there is a credible body of evidence that contradicts it”.[95] It is submitted the Arbitrator could draw legitimate inferences about the credit of the appellant and Dr Chew from the evidence before him.[96]
[94] [2006] NSWCA 34; 4 DDCR 358 (Zheng), [25], [37].
[95] Citing HSH Hotels v Multiplex [2004] NSWCA 302, [86]–[87], Hull v Thompson [2001] NSWCA 359, [21].
[96] Respondent’s submissions, [18]–[24].
The respondent submits it was the Arbitrator’s role to deal with the conflict between witnesses by deciding which he accepted. It is submitted the Arbitrator “gave sufficient and detailed reasoning” for accepting the evidence which he did. The respondent submits the rule in Browne v Dunn[97] does not apply in the Commission.[98] It submits the Arbitrator’s findings regarding the acceptability of the evidence of the appellant and Dr Chew are findings of fact, and not so against the weight of the evidence that some error must have been involved.[99] The respondent refers to Devries v Australian National Railways Commission[100] dealing with overturning credit findings on appeal. The respondent quotes from Brines v Westgate Logistics Pty Ltd in which Keating P said:
“Moreover in recent times both at first instance and on appeal judges are encouraged to limit their reliance on the appearances of witnesses and should place greater emphasis in reaching their conclusions on the basis of objective evidence and the apparent logic of events. Whilst this does not eliminate the established principles concerning the credibility of witnesses it tends to reduce the occasions where those principles are seen as critical (see Fox v Percy).”[101]
[97] (1894) 6 R 67 (HL).
[98] Referring to Baines v Hany [2018] NSWWCCPD 14, [212]–[213].
[99] Citing Shellharbour City Council v Rigby [2006] NSWCA 308.
[100] [1993] HCA 78; 177 CLR 472; 112 ALR 641, [10].
[101] [2008] NSWWCCPD 43, [84].
The respondent’s submissions do not seek to identify anything in the transcript of the hearing (or other material) where there is ventilation of the credit issues raised in the Arbitrator’s reasons.
Appellant’s submissions in reply
The appellant lodged submissions in reply dated 2 December 2019. These referred to a submission by the respondent that it was open to the Arbitrator to determine credit issues without hearing oral evidence or hearing and observing cross-examination. The appellant, in reply, quotes the following passage from the decision of Roche DP in JB Metropolitan Distributors Pty Ltd v Kitanoski:
“Subject to the relevant issues having been fully and fairly ventilated in the documentary evidence, and the parties having had a reasonable opportunity to make appropriate submissions on those issues, it is open to an Arbitrator to form a view about the credit of a witness or a party even if that witness or party has not given oral evidence or been cross-examined (New South Wales Police Force v Winter [2011] NSWCA 330 from [81]).”[102]
[102] [2016] NSWWCCPD 17 (Kitanoski), [121].
The appellant submits the respondent did not seek to impugn the evidence of either the appellant himself or Dr Chew by way of cross-examination, in submissions or by virtue of documents lodged. The appellant also refers to the following passage from the judgment of McColl JA in Tudor Capital Australia Pty Limited v Christensen:
“The Deputy President made this adverse finding even though, as he acknowledged, no submission to this effect had been made to him and even though no such proposition had been put to Professor Keogh. Although Kuhl concerned a party-witness, the fundamental principle of fairness underlying the statements in the decision, that a person the subject of adverse criticism by a decision-maker in a manner of significance to the outcome of the case should be given the opportunity to deal with the potential criticism, should equally apply to non-party witnesses.”[103] (omitting footnotes)
[103] [2017] NSWCA 260 (Christensen), [416].
Consideration
I have read the transcript of the arbitration hearing. There is nothing in it that reflects any attack on the credit of the appellant or Dr Chew.
I accept that the Arbitrator made findings going to the credit of the appellant and Dr Chew. In relation to the appellant, the following was said:
(a) At [180] the appellant was described as “a strong advocate for his point of view”, and sometimes that advocacy “overcame accuracy, or disposed him to ignore relevant facts and thus give confusing or inconsistent evidence”.
(b) At [216] it was said the appellant had a “tendency to prefer drama to obtain advantage, whether it be to ensure the cooperation of the Union, or to obtain a favourable medical certification”.
(c) At [232] the Arbitrator referred to the alleged discovery of asbestos deposits (and the grievance procedure in 2017), together with “the episode with the goalposts”. He said “I have not accepted [the appellant’s] version of events regarding either issue”.
(d) At [235] the Arbitrator said “In each narrative [the appellant] has been prepared to make provocative statements, and to claim that he has suffered a psychological injury when those statements have proved to be incorrect or exaggerated.”
In relation to Dr Chew, the following was said:
(a) At [216] the Arbitrator said “the opinion of [the appellant’s] general practitioner could not be regarded as being objective. General practitioners have the most contact with their patients and can sometimes be over enthusiastic in espousing their cause.” The Arbitrator referred to part of the appellant’s statement where he said that after he had seen Dr Bond, Dr Chew contacted him and said that he “was taking over his case because [the appellant] had had a lot of trouble with Council over the years. If [the appellant’s] narrative is correct, I do not regard Dr Chew’s comments as being unbiased or objective.”.
The appellant did not make submissions before the Arbitrator going to the credit of either himself or Dr Chew, understandably given that these matters were not raised.
In Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation Hunt J said:
“I remain of the opinion that, unless notice has already clearly been given of the cross-examiner’s intention to rely upon such matters, it is necessary to put to an opponent’s witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings.”[104]
[104] [1983] 1 NSWLR 1 (Allied Pastoral), 26.
In New South Wales Police Force v Winter[105] the Court of Appeal dealt with an alleged denial of procedural fairness, associated with counsel being prevented from further cross-examining, in Commission proceedings. Campbell JA (Giles JA and Handley AJA agreeing) observed that, although s 354 of the 1998 Act permits proceedings in the Commission to be conducted with “less formality and more truncated procedure”, an arbitrator remains subject to obligations of procedural fairness.[106] His Honour referred to the above passage from Allied Pastoral. He summarised the principles from a number of authorities in which the rule in Browne v Dunn was modified, in circumstances where there were rules for the exchange of statements and materials prior to the hearing. His Honour, quoting from his own earlier decision in West v Mead[107] said:
“The consequence of these decisions is that the circumstances in which Browne v Dunn will require matter to be put to a witness in cross-examination will depend upon the nature of the pre-trial preparation there has been, and whether that pre-trial preparation has been sufficient to give notice to a witness of the submission ultimately intended to be put to the court. An aspect of this is that Browne v Dunn will require more extensive cross-examination in a case where all the evidence is given orally, than is necessary in a case where the substance of the evidence proposed to be given by each side is notified in advance by affidavit or statement.
Even when there has been an exchange of affidavits or statements, the rule in Browne v Dunn will require a cross-examining counsel to put to a witness the implications which counsel proposes to submit can be drawn from the evidence, if those implications are not obvious from the evidence, or from other pre-trial procedures, or the course of the case. ...”[108]
[105] [2011] NSWCA 330; 10 DDCR 69 (Winter).
[106] Winter, [77].
[107] [2003] NSWSC 161; 13 BPR [24,431].
[108] Winter, [81].
In Seltsam Pty Limited v Ghaleb Ipp JA (Mason P agreeing) summarised a number of authorities dealing with procedural fairness and said:
“78. These cases illustrate the general principle that although the basis on which the parties conduct a trial does not bind the judge, if the judge contemplates determining the case on a different basis he or she must inform the parties of this prospect so that they have an opportunity to address any new or changed issues that may arise.
79. A failure so to inform the parties will ordinarily result in a denial of procedural fairness. A new trial will be ordered if a party is not afforded a fair trial in circumstances where a properly conducted trial might possibly have produced a different result. It will not ordinarily be necessary to lead evidence to prove that the denial of procedural fairness had the potential to affect the outcome; in most cases the facts will speak for themselves.”[109]
[109] [2005] NSWCA 208; 3 DDCR 1 (Ghaleb), [78]–[79].
The appellant has referred to a passage from the decision of Roche DP in Kitanoski (quoted at [94] above), which is consistent with the decision in Winter, and with which I agree. That there was a denial of procedural fairness is consistent with the passage from Kuhl and Aala quoted by the appellant, set out at [85] and [86] above.
In the current matter, findings adverse to the credit of the appellant and Dr Chew were made, in circumstances where there was no cross-examination on the issue, the issue was not the subject of submissions, and it was not raised with the parties.
The respondent makes a number of submissions, to the effect that the Commission can assess the credibility of a witness without cross-examination and can, in appropriate circumstances, reject evidence where it is uncontested by cross-examination. The respondent submits the Arbitrator was not obliged to accept evidence which was not the subject of cross-examination, where it was contradicted by a substantial body of credible evidence. All of these submissions, in a general sense, are true in an appropriate case. The respondent’s submissions do not come to grips with the appellant’s procedural fairness argument.
In Stead v State Government Insurance Commission, the High Court stated:
“Where, however, the denial of natural justice affects the entitlement of a party to make submissions on an issue of fact, especially when the issue is whether the evidence of a particular witness should be accepted, it is more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference.”[110]
[110] [1986] HCA 54; (1986) 161 CLR 141 (Stead), [11].
I accept the appellant’s submission that, in the circumstances of the current matter, there was a denial of procedural fairness. Ground No. 2 is upheld. It could not be concluded that, if the credit issue was raised with the appellant appropriately at the arbitration hearing, and there was an opportunity to deal with it, either through submissions or oral evidence, this could not have affected the result. In circumstances where there was a denial of procedural fairness, it is appropriate to allow the appeal unless it could not possibly have affected the result.[111] It follows that the appeal is allowed.
[111] Stead, [12], Toll Pty Ltd v Morrissey [2008] NSWCA 197; 6 DDCR 561, [10], Ghaleb, [79].
The appropriate order is one remitting the matter for rehearing before a different arbitrator. This is sufficient to dispose of the appeal. It is unnecessary to deal with the other grounds.
DECISION
The Certificate of Determination dated 4 September 2019 is revoked.
The matter is remitted for re-determination by another Arbitrator.
Michael Snell
DEPUTY PRESIDENT
13 March 2020
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