Ceccato v Australian Steel Mill Services Pty Ltd
[2020] NSWWCCPD 58
•14 September 2020
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |
| CITATION: | Ceccato v Australian Steel Mill Services Pty Ltd [2020] NSWWCCPD 58 |
| APPELLANT: | Michael Ceccato |
| RESPONDENT: | Australian Steel Mill Services Pty Ltd |
| INSURER: | Employers Mutual NSW Ltd |
| FILE NUMBER: | A1-739/20 |
| ARBITRATOR: | Ms C McDonald |
| DATE OF ARBITRATOR’S DECISION: | 28 April 2020 |
| DATE OF APPEAL DECISION: | 14 September 2020 |
| SUBJECT MATTER OF DECISION: | Application to rely on fresh evidence pursuant to s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998; application to extend time pursuant to rule 16.2(5) of the Workers Compensation Commission Rules 2011; section 11A(1) of the Workers Compensation Act 1987: actions with respect to provision of employment benefits |
| PRESIDENTIAL MEMBER: | Deputy President Michael Snell |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Melinda Griffiths, solicitor | |
| Melinda Griffiths Lawyers | |
| Respondent: | |
| Mr Allen Parker, counsel | |
| Moray & Agnew Lawyers | |
| ORDERS MADE ON APPEAL: | 1. The appellant’s application pursuant to section 352(6) of the Workplace Injury Management and Workers Compensation Act 1998 for leave to rely on fresh evidence is refused. 2. The appellant’s application to extend the time for making this appeal pursuant to r 16.2(5) of the Workers Compensation Commission Rules 2011 is refused. |
INTRODUCTION AND BACKGROUND
Michael Ceccato (the appellant) was employed by Australian Steel Mill Services Pty Ltd (the respondent) from 1991. He was initially a laboratory technician,[1] then from 2002, the Environment and Quality Co-ordinator, and from 2010, the Environment and Quality Manager.[2]
[1] Appellant’s statement 12/6/18, [23], Reply, p 40.
[2] Appellant’s statement 15/1/20, [13], Application to Resolve a Dispute (ARD), p 1.
There were difficulties in the appellant’s relationship with various people at the respondent, in particular its then general manager Richard Bartkowiak, from about 2015. These difficulties related, at least in part, to attempts by the respondent to introduce new employment contracts in respect of staff members, of which the appellant was one.[3] Areas of controversy included the provision of work supplied motor vehicles for private use, salary increases if staff members forwent their entitlement to company motor vehicles, entitlements to sick leave and the entitlements of staff in the event of redundancies.[4]
[3] Appellant’s statement 15/1/20, [18]–[20].
[4] Appellant’s statement 15/1/20, [20]–[30].
The appellant ceased work from 18 May 2017.[5] He was under the care of Dr Tut, his general practitioner.[6] The appellant did not initially claim workers compensation and received sick leave. On 10 May 2018 the appellant obtained a “WorkCover Certificate of Capacity” from Dr Tut, as his “sick leave was nearing expiration”.[7] He came under the care of Dr Lal, a psychiatrist, from February 2019 and Mr Di Martino, a psychologist, from April 2019.[8]
[5] Appellant’s statement 15/1/20, [124].
[6] Appellant’s statement 15/1/20, [127].
[7] Appellant’s statement 15/1/20, [159].
[8] Appellant’s statement 15/1/20, [161]–[162].
The respondent’s insurer, EML, issued a s 74 notice dated 10 August 2018 denying liability for an injury described as “Anxiety/Depression”.[9] The basis of the denial was s 11A(1) of the Workers Compensation Act 1987 (the 1987 Act). The appellant sought a review of this decision.[10] EML issued a review decision dated 14 September 2018, in which it withdrew its denial.[11] EML issued a further s 78 notice declining liability dated 9 April 2019.[12] Its defence was based on s 11A(1) of the 1987 Act. It asserted that the appellant’s “psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by [the respondent] with respect to provision of employment benefits”. The appellant’s entitlement to weekly compensation was to end as at 2 May 2019. This decision was confirmed in a review by icare Workers Insurance dated 2 May 2019.[13]
[9] ARD, pp 82–85.
[10] ARD, pp 88–145.
[11] ARD, pp 170–172.
[12] ARD, pp 173–177.
[13] ARD, pp 223–226.
These proceedings seek weekly payments of compensation from 22 May 2017 to 10 May 2018 and from 2 May 2019 on a continuing basis. There was also a claim for expenses pursuant to s 60 of the 1987 Act.[14] The matter was listed for an arbitration hearing on 25 March 2020. The hearing was conducted by telephone consistent with the adjustments to the Commission’s procedures associated with the COVID-19 pandemic. Mr Horan appeared for the appellant and Mr Allen Parker appeared for the respondent. Counsel for the parties addressed and the Arbitrator reserved her decision. The Commission issued a Certificate of Determination dated 28 April 2020 accompanied by 30 pages of reasons.[15] There was an award in favour of the respondent. This appeal is brought against that decision.
[14] Direction issued by Arbitrator McDonald dated 13 March 2020.
[15] Ceccato v Australian Steel Mill Services Pty Ltd [2020] NSWWCC 131 (the reasons).
THE ARBITRATOR’S REASONS
The Arbitrator noted that the respondent conceded the occurrence of a psychological injury. The issue was whether a defence was made out pursuant to s 11A(1) of the 1987 Act, on the basis that the injury was wholly or predominantly caused by the reasonable action of the respondent in respect of the provision of employment benefits.[16] The Arbitrator summarised, in detail, the evidence of the appellant, and the issues which existed between he and the respondent.[17] She summarised the evidence of the respondent’s lay witnesses.[18] She summarised the various dispute notices issued by the insurer, and the appellant’s response to these.[19]
[16] Reasons, [2].
[17] Reasons, [12]–[54].
[18] Reasons, [55]–[89].
[19] Reasons, [90]–[98].
The Arbitrator referred to reports and short reports from Dr Tut, and the histories on which he relied. She noted the history recorded by Mr Di Martino, psychologist, of “bullying and harassment in the workplace”.[20] She described Dr Allan as the “main medical evidence” on which the appellant relied. She noted the appellant told Dr Allan that he had completed “an extensive statement outlining [the appellant’s] experiences in his workplace”, which was not provided to Dr Allan in the “supplied documents”. There was a “background” history dating back to 2015 when there were “new contracts” being issued, and there was a choice between keeping a company car or a “salary constraint”. Dr Allan recorded a history of other incidents involving “unauthorised changes to procedures” and concern about workplace safety. The Arbitrator noted a history recorded by Dr Allan which included:
“… it was only after May 2017 and an interaction with the HR manager as a response to further issues regarding a new contract that [the appellant] had finally felt overwhelmed with his psychological state and took sick leave eventually remaining off a year before his case came under the WorkCover system.”
[20] Reasons, [103]–[114].
The Arbitrator quoted from Dr Allan’s opinion on causation, which included:
“[The appellant’s] symptoms appear to have initially developed in late 2016 … From the history he described there was a gradual worsening of his symptoms during 2016 and into 2017.”[21]
[21] Reasons, [115]–[118].
The Arbitrator noted the appellant denied that “personal issues” contributed to his condition. She noted Dr Allan’s view that, overall, the appellant’s “thought content was dominated by frustration at his experiences between 2016 and 2017 in his workplace”. She quoted from Dr Allan’s view that the “difficulties outlined … are the direct cause of him developing a Major Depressive Disorder as per the DSM 5”.[22]
[22] Reasons, [119]–[121].
The Arbitrator noted there was no further report from Dr Allan, and no indication that Dr Allan was provided with the appellant’s statement. She noted there was “no detailed report from Dr Tut” and “no evidence at all from Dr Lal”, the psychiatrist to whom Dr Tut referred the appellant. [23]
[23] Reasons, [122]–[123].
The Arbitrator referred to Dr Whetton in the respondent’s medical case. She noted Dr Whetton was specifically asked to comment on whether the psychological injury was wholly or predominantly caused as a result of concerns with the provision of benefits from the employer. She quoted from the doctor’s opinion:
“From the history and examination, his psychological injury was predominantly as a result of concerns regarding the provision of benefits from the employer but, particularly from the history that he gives, the manner in which this was handled and what he believes have been the lies in legal documents on the part of the employer.”[24]
[24] Reasons, [127]–[128].
The Arbitrator summarised the parties’ submissions. She noted a submission by the appellant’s counsel that the injury was caused by “workplace difficulties rather than the negotiations concerning contractual entitlements”. She referred to a submission that the appellant’s evidence showed the respondent’s practices were “unethical or reckless with respect to safety”. It was submitted Dr Allan’s report identified safety and ethical issues as the direct cause. The onset of symptoms married up with four broad areas of concern identified in the appellant’s evidence.[25]
[25] Reasons, [129]–[131].
The Arbitrator noted an alternative submission on the appellant’s part that the actions of the respondent were not reasonable, for the reasons set out in the response the appellant drafted to the insurer’s s 74 notice. It was additionally submitted that the respondent’s actions were not reasonable as it had insinuated that the appellant’s employment may be terminated if he did not agree to the new contractual terms. The appellant’s counsel referred to the evidence of the appellant regarding a “private chat” with Mr Bourke on 9 May 2017, which he submitted created a perception of coercion. The appellant ceased work soon after.[26]
[26] Reasons, [133]–[134].
The Arbitrator referred to a submission by the respondent that the appellant’s statement set out the cause of his condition, that he was “not happy about the changes to his pay and conditions”. Dr Allan was not provided with a copy of the appellant’s statement. There was no report from Dr Lal, the treating psychiatrist, or from Nicole Rowe, a psychologist who treated the appellant. Dr Tut recorded the reason why the appellant ceased work was dissatisfaction with the new contract.[27]
[27] Reasons, [135]–[136].
The Arbitrator noted the respondent’s counsel submitted the letter from Mr Bartkowiak dated 11 July 2017, when the car lease was about to expire, was not as abusive as portrayed by the appellant. It was submitted the letter from Mr Bartkowiak dated 12 July 2017 was hard to characterise as “dismissive”. The statements from other staff members, particularly Ms Lawrence, showed “the workplace was not the uncaring situation that [the appellant] sought to portray”. It was submitted the changes to the employment contract were reasonable, the appellant was treated equally with other employees. It was these actions which caused the injury.[28]
[28] Reasons, [137]–[139].
The Arbitrator said that the parties approached the s 11A(1) issue on the basis that “all of the conduct of [the respondent’s] staff with respect to the new contract was the relevant action”. She said she was not satisfied the injury was wholly caused by the respondent’s conduct concerning the provision of employment benefits. She was satisfied “the predominant cause of [the appellant’s] injury was the action taken by [the respondent] with respect to the new contract”.[29]
[29] Reasons, [146]–[147].
The Arbitrator noted the absence of any medical report from Dr Lal and Ms Rowe, the absence of a detailed report from Dr Tut, and the fact that Dr Allan was not provided with the appellant’s detailed statement. She said there was “little evidence about the actual cause of [the appellant] ceasing work on 18 May 2017 other than that he had a planned appointment with a cardiologist on the following day”. “He was absent from work for a year on sick leave before making a claim for compensation”. His work-related complaints to his treating doctor, Dr Tut, went to his refusal to sign the new contract and return his car.[30] The Arbitrator said:
“In May 2018, when [the appellant] had exhausted his sick leave, Dr Tut recorded a detailed note before providing the first ‘WorkCover certificate’. The reason was in summary that [the appellant] had declined to sign the contract which would lead to loss of benefits, which his boss had taken personally and there was interference in his role, placing pressure on him not to follow processes which compromised his integrity. His anxiety worsened after being asked to attend a medical examination.”[31]
[30] Reasons, [148]–[149], [152]–[153].
[31] Reasons, [151].
The Arbitrator referred to Dr Whetton’s opinion on causation. She said that the doctor had obtained a history of other concerns outside the contractual issues and considered them relevant. She said the “overwhelming tenor of the evidence” was that the issues that led to the injury were those related to the contract.[32] She said there was one exception to this, being a long email to Mr Bartkowiak dated 10 July 2017. In this, the appellant said that his “role has been undermined by interference in my professional judgement, resulting in me not being able to carry out my role as intended.” He said that some of his closest colleagues had been treated unfairly.
[32] Reasons, [158].
The Arbitrator said there was no more detail in the email about the events which were said to have constituted interference. There was no more evidence about unfair treatment of the appellant’s colleagues in his statement dated 15 January 2020.[33] The Arbitrator said the appellant’s description of “safety issues” was “at odds with the statements of other staff”. The explanations of other staff were “consistent and plausible”. The Arbitrator said the emails of Mr Bartkowiak dated 10 and 12 January 2017 did not, on careful reading, contain a threat to the appellant’s employment, although the appellant said he perceived it that way.[34] She considered the possibility that the appellant’s perceptions in this regard were capable of causing injury.[35] She said there was no evidence that the appellant’s perception of the way the four broad issues were handled was the predominant cause of his injury or his ceasing work.[36]
[33] Reasons, [159].
[34] Reasons, [162]–[163].
[35] Reference was made to Attorney General’s Department v K [2010] NSWWCCPD 76.
[36] Reasons, [164]–[165].
The Arbitrator made a factual finding:
“The predominant cause of the injury was the conduct of [the respondent] with respect to employment benefits.”[37]
[37] Reasons, [166].
The Arbitrator then considered whether the actions of the respondent in this regard were ‘reasonable’. She noted the test was an objective one.[38] She quoted the following passage from Irwin v Director-General of Education:
“The question of reasonableness is one of fact, weighing all the relevant factors. The test is less demanding than the test of necessity, but more demanding than a test of convenience. The test of ‘reasonableness’ is objective, and must weigh the rights of employees against the objective of the employer. Whether an action is reasonable should be attended, in all the circumstances, by a question of fairness.”[39]
[38] Commissioner of Police v Minahan [2003] NSWCA 239, Jeffery v Lintipal Pty Ltd [2008] NSWCA 138.
[39] Unreported, 18/6/98, Compensation Court of NSW, Geraghty CCJ.
The Arbitrator said that none of the correspondence, apart from that of the appellant himself, raised any possibility of the appellant risking termination. The respondent supported the appellant’s return to work, and therapy with Mentor Services which it funded. She said the request that the appellant attend a medical examination was reasonable. It was reasonable that Mr Bartkowiak consider the needs of the business, and the tone of the letter raising this matter was respectful. The Arbitrator said that the letter dated 21 July 2017 “was expressed to be sent in the spirit of opening up a dialogue” and confirmed the respondent’s plan that the appellant return to work.[40]
[40] Reasons, [172]–[175].
The Arbitrator said that a desire to update employment contracts was not, of itself, unreasonable. Mr Bartkowiak said it was necessary to bring all employees under the same terms and conditions. The appellant “was given a choice of annual salary increases or the car and he kept the car. When he no longer had the car, he was paid salary increases, while he was off work on sick leave.” The Arbitrator referred to the description by Mr Bourke of his meeting with the appellant on 15 May 2017. The versions of these men regarding the meeting differed. The Arbitrator said that Mr Bourke’s description off the meeting was “detailed and sets out the matters discussed and the explanations provided”. The Arbitrator accepted Mr Bourke’s description of the meeting.[41]
[41] Reasons, [177]–[181].
The Arbitrator concluded the actions of the respondent in renegotiating the appellant’s contract were not unreasonable, when the remainder of the workforce had accepted the new contract, nor was the way in which the action was undertaken. The Arbitrator made an ultimate finding of fact:
“For those reasons, I am satisfied that [the respondent] has proved that [the appellant’s] injury was predominantly caused by reasonable conduct with respect to the provision of employment benefits.”[42]
[42] Reasons, [183].
ON THE PAPERS
Section 354(6) of 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 both 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.
GROUNDS OF APPEAL
The appellant raises the following grounds of appeal:
(a) “The Arbitrator erred in law by finding the provision of employment benefits were [sic] the predominant cause of the [appellant’s] injury.” (Ground No. 1)
(b) “The Arbitrator erred at law in finding that the conduct of [the respondent’s] staff in the provision of employment benefits was reasonable.” (Ground No. 2)
(c) “The Arbitrator erred in fact by finding the [appellant] had not started seeing a medical practitioner about how he was feeling prior to ceasing employment.” (Ground No. 3)
(d) “The Arbitrator erred in applying her discretion by preferring the evidence of the [respondent] over that of the [appellant].” (Ground No. 4)
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,[43] Roche DP applied Whiteley Muir & Zwanenberg Ltd v Kerr[44] (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd[45]) 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’.”[46]
[43] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[44] (1966) 39 ALJR 505 (Whiteley Muir), 506.
[45] [1996] HCA 140; 140 ALR 227.
[46] Raulston, [19].
In Davis v Ryco Hydraulics Pty Ltd, Keating P observed that these principles “have been consistently applied in the Commission”.[47] The Deputy President in Raulston also cited the following passage from Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd:[48]
“… 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.”[49]
[47] [2017] NSWWCCPD 5, [67].
[48] [2001] FCA 1833, [28].
[49] Raulston, [20].
In Northern NSW Local Health Network v Heggie,[50] 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”.[51]
[50] [2013] NSWCA 255; 12 DDCR 95 (Heggie).
[51] Heggie, [72].
The principles applicable to appeals pursuant to s 352(5) of the 1998 Act were recently considered by the Court of Appeal in Workers Compensation Nominal Insurer v Hill.[52] Their Honours said there was no error in a Presidential member, dealing with an appeal pursuant to s 352(5), applying the description of a judge’s function on appeal as explained by Barwick CJ in Whiteley Muir. Basten JA said:
“With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”[53]
[52] [2020] NSWCA 54 (Hill).
[53] Hill, [20].
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirements as to quantum pursuant to s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.
The appeal was lodged initially on the Commission’s online portal at 5.24 pm on 26 May 2020. The appeal was returned to the appellant’s solicitors under cover of a letter dated 27 May 2020. That letter drew the appellant’s solicitor’s attention to r 8.1(4) of the Workers Compensation Commission Rules 2011 (the Rules) which had the effect that the appeal was taken to have been received on 27 May 2020, outside the 28 day period within which an appeal could be made in compliance with s 352(4) of the 1998 Act. The appeal was rejected on the basis that it was not accompanied by an application to extend time nor by details of the arguments to be put in favour of granting such an extension and it failed to comply with Practice Direction No 6.[54]
[54] Letter of the Registrar’s delegate dated 27 May 2020.
The appellant sought to lodge the appeal again on 27 May 2020 at 6.59 pm. It was rejected for non-compliance with Practice Direction No 6. It was additionally noted that several of the documents the appellant sought to rely on as fresh or additional evidence were not legible and legible copies were required.[55] The appeal was ultimately successfully lodged on 29 May 2020. This was outside the time for bringing an appeal. It follows that an extension of time pursuant to r 16.2(5) of the Rules is required if the appeal is to be made.
[55] Letter of the Registrar’s delegate dated 29 May 2020.
THE APPLICATION TO RELY ON FRESH OR ADDITIONAL EVIDENCE
It is necessary to consider the prospects of success of the appeal in dealing with the application to extend time. The appellant has attached a number of documents to its appeal, which it seeks to have admitted as fresh or additional evidence pursuant to s 352(6) of the 1998 Act. The application to rely on this fresh or additional evidence is opposed. Some of the appellant’s submissions on the appeal are predicated on the assumption that various of these documents are in evidence before the Commission. It follows that whether leave should be granted to the appellant to rely on these documents is a matter that requires initial consideration, before the application to extend time is dealt with.
Section 352(6) of the 1998 Act provides:
“Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
The documents involved are:
(a) report of Dr Tut dated 18 May 2019;
(b) reports of Nicole Rowe dated 23 February 2017, 31 May 2017, 21 June 2017 and 5 July 2017;
(c) report of Dr Lal dated 21 February 2017;
(d) letter from Mr Bartkowiak dated 24 November 2016, and
(e) email from Mr Bartkowiak dated 14 April 2015 and attached document headed “Frequently Asked Questions”.
Appellant’s submissions
The appellant submits these documents were “unable to be located by the [A]rbitrator when making her decision”. The appellant submits the documents were “available between the parties” but were not included in the ARD. He submits the documents would not take the respondent by surprise as the respondent provided the documents to the appellant. It is submitted the appellant’s submissions “are greatly influence[d] by these documents”, which may have “a significant impact on the appellant’s prospects of success”. It is submitted the interests of justice favour the admission of the documents.[56]
[56] Appellant’s submissions, ‘Fresh Evidence’.
Respondent’s submissions
The respondent submits the documents do not satisfy s 352(6) of the 1998 Act. They are not fresh evidence as they were apparently in the possession of the appellant’s solicitors who had conduct of the matter at the time of the arbitral hearing. There is no explanation for the failure to adduce the evidence at the hearing. The respondent submits admission of these documents would cause it prejudice. It denies that it was in possession of the documents described at (b) to (c) of [38] above.
Consideration
In CHEP Australia Ltd v Strickland[57] Barrett JA (Macfarlan JA agreeing) dealt with the application of s 352(6) of the 1998 Act. His Honour at [27] and [30]–[31] said:
“27. In the s 352(6) context, there are two threshold questions. They arise as alternatives and are set out in the second sentence of the provision. The first goes to the issue of availability in advance of the proceedings. The second entails an assessment of whether continued unavailability of the evidence ‘would cause substantial injustice in the case’. The discretion to admit becomes available to be exercised only if the Commission is satisfied as to one of the threshold matters.”
“30. Counsel for the appellant submitted that the Commission misdirected itself in law in construing the ‘substantial injustice’ criterion in s 352(6). It was submitted that that criterion may be satisfied in circumstances where it is not possible to say that availability of new evidence would have produced a different result; and that the criterion will be satisfied if the evidence is compelling and might have influenced the outcome even though it cannot be said that it would certainly have done so.
31. … The part of s 352(6) concerning ‘substantial injustice’ does not direct attention to possibilities or potential outcomes. The task is to decide whether absence of the evidence ‘would cause’ substantial injustice in the case. There must therefore be a decision as to the result that ‘would’ emerge if the evidence were taken into account and the result that ‘would’ emerge if it were not. If the result would be the same on each hypothesis, the ends of justice cannot be said to have been defeated by exclusion.”
[57] [2013] NSWCA 351; 12 DDCR 501 (Strickland).
Dealing with the exercise of discretion pursuant to s 352(6) of the 1998 Act, Roche DP in Drca v KAB Seating Systems Pty Ltd[58] said:
“The legal profession is reminded, yet again, that it will only be in the most exceptional case where a party will be permitted to tender on appeal evidence that, with reasonable diligence, was readily available at the arbitration. Arbitrations are not a dress rehearsal where the parties can await the outcome and then attempt to tender, on appeal, evidence that could and should have been tendered at the arbitration, as if the arbitration was merely a preliminary hearing.” (emphasis in original)
[58] [2015] NSWWCCPD 10, [28].
The submission that the Arbitrator was unable to locate the relevant documents when making her decision is misleading and should not have been made. It is apparent from the balance of the submissions that the material was not before the Arbitrator. It is plain, from the appellant’s submissions overall, that the relevant material was in the possession of the appellant’s then solicitors at the time of the arbitration hearing. It could have been used but it was not. The appellant cannot satisfy the first of the threshold questions identified in the subsection.
It follows that the second of the threshold questions represents the only potential avenue for the appellant to enliven the discretion pursuant to s 352(6). This requires that “the new evidence would have produced a different result”. The appellant’s own submissions do not go that far. The appellant submits the additional evidence “would or may have a significant impact on the appellant’s prospects of success”. It is clear from Strickland at [30] that this is insufficient to enliven the discretion. The appellant submits it would cause “substantial injustice” if leave was not granted. If this submission is read in light of the decision in Strickland, it is arguably sufficient to raise the second of the threshold questions in s 352(6).
Even if the submissions on fresh or additional evidence are read in this way, the appellant makes no specific submissions, dealing with s 352(6), regarding how the relevant documents would change the result. Neither of the threshold questions in s 352(6) is satisfied, and the discretion pursuant to s 352(6) is not enlivened. The effect of this is that the application pursuant to s 352(6) is refused.
In the event that I am wrong in forming the above view of the scope of the submissions that are made, in support of the application to admit fresh or additional evidence, I will deal with the admissibility of the further documents.
The first of the documents the subject of the application is a report of Dr Tut, said to be dated 18 May 2019.[59] It is not a medical report in the conventional sense. It is a letter from EML to Dr Tut which asks a number of questions, which the doctor filled out by hand. The imperfect copy attached to the appeal appears to be dated 18 May 2018 (the submissions say 2019). This would be consistent with Dr Tut’s report dated 6 June 2019, which refers to a request for medical information from EML “last year in May”.[60] The date does not appear to be critical. The response to a question about “History and causation” of the injury is potentially relevant to the causation issue posed by s 11A(1) of the 1987 Act. The doctor’s response reads:
“Repetitive bullying and harassment at work for not signing a new employment contract and also raising concern about not following due process by management.”
[59] Appellant’s submissions, ‘Schedule of New Evidence’.
[60] ARD, p 227.
The Arbitrator was not satisfied the injury was wholly caused by the respondent’s conduct concerning the provision of employment benefits. The Arbitrator’s finding on causation was that “the predominant cause of the injury was the action taken by [the respondent] with respect to the new contract” (emphasis added) (see [16], [20] and [24] above). This finding was sufficient to satisfy the causal question in s 11A(1) in the respondent’s favour. The passage of history referred to in [47] above is not inconsistent with the Arbitrator’s findings. There is no apparent basis on which this document from Dr Tut would change the result, and the appellant makes no specific submission regarding how it would do so. This document does not satisfy the second of the threshold questions in s 352(6).
The next four documents the subject of the application for leave are “Case notes” from Nicole Rowe. The initial consultation was on 23 February 2017. The recorded history dealt only with the appellant’s unwillingness to sign the new employment contract and related matters. The case note stated the appellant was “not willing to be bullied in to signing a contract that he is not content with”. The case note stated “[i]t appears that [the appellant] would benefit more from legal advice, or advice from a workplace union as opposed to engaging in counselling”. It said the appellant “has agreed to seek legal advice”.
The second case note was dated 31 May 2017. It said that the appellant had sought legal advice and acted on it. It said the appellant “proceeded to send his Gen Manager an email stating that he would like to remain on his current contract, and receive his current conditions, specifically access to a work vehicle”. It described Human Resources as “‘muddying his name’ as a result of his resistance to sign the new contract agreement”. It said the appellant would “like to be made redundant”, but he was “unsure as to whether the workplace would agree”.
The third of the case notes, dated 21 June 2017, said the appellant “continues to be on leave”. It described “anxiety with regard to the workplace situation”. The fourth case note was dated 5 July 2017. The appellant remained on leave. The case note referred to a need to provide further documentation if there was a need for further time off. It referred to the appellant stating “this matter has not been about the car, but the breach of contract by his employer”.
There is no apparent basis on which these case notes would change the result. They are consistent with a history, around the time the appellant ceased work, that focussed on issues about the new employment contract and the associated loss of the appellant’s work supplied motor vehicle. The appellant makes no specific submission on how the material from Ms Rowe would lead to a different result. These documents do not enliven the discretion in s 352(6) of the 1998 Act.
The next document in respect of which leave is sought is a report from Dr Lal dated 21 February 2019. It recorded the appellant “developed quite a severe depressive illness in the context of workplace bullying and harassment”. It recorded the appellant was being “unduly influenced to not follow correct procedures and reporting routines at work”. Dr Lal said he agreed with “the diagnosis of Major Depressive Episode in the context of stressors as noted”. This document dealt with the psychological condition on the basis of a history of work-related causes other than issues about the contractual dispute. It assists the appellant’s case on the s 11A(1) issue. The Arbitrator’s findings were based on the whole of the evidence, including the lay evidence, the medical reports that were in evidence, and clinical notes. She referred to the “overwhelming tenor of the evidence”, saying “the issues which led to the injury and the cessation of work were those related to the contract”.[61] Dr Lal’s history was recorded in February 2019, over 18 months after the appellant ceased work duties with the respondent. It is not apparent how the report of Dr Lal would change the result, and the appellant’s submissions do not explain this. I am not satisfied that the second of the threshold questions in s 352(6) is answered in the appellant’s favour in respect of this document.
[61] Reasons, [158].
The next document is a letter from Mr Bartkowiak to the appellant dated 24 November 2016. It stated that from 1 July 2017, the respondent would no longer supply him with a motor vehicle for private use. It attached “new terms and conditions of your employment” and a confirmation of acceptance. It stated the new document superseded earlier agreements and other documents regarding the appellant’s employment. It stated that on signature and return of the Acceptance the new terms would be taken to be understood and accepted. The document is clearly relevant to the issues agitated in the case. How it would change the result is obscure and is not stated by the appellant.
The appellant also seeks to rely on an email dated 14 April 2015 to a number of employees (including the appellant) from Mr Bartkowiak. The email said that the attached document detailed the respondent’s response to concerns raised with the terms and conditions and the change to the company car policy. It described changes to the sick leave policy. The attached document (dated 14 April 2015) was headed “Frequently Asked Questions”. It addressed the change in the policy of work supplied cars. A staff member who relinquished his/her vehicle would receive “a salary increase from 1st April 2015”, and “from 1st July, have the car value put back into their salary”. If a staff member elected to keep his/her car, the person’s salary would be frozen; at the end of the lease the person could “revert back to the 1st option by relinquishing the vehicle”. This is generally consistent with the evidence (from other sources) that was before the Arbitrator regarding the change in policy regarding the provision of cars. It predates the appellant’s cessation of work by about two years. It is unclear how it would have changed the result.
The second threshold question is not raised in the appellant’s submissions in a fashion consistent with the decision in Strickland. If it had been appropriately raised, it is not satisfied in respect of the various documents described in the appellant’s Schedule of New Evidence. Even if it were, the admission of evidence pursuant to s 352(6) is discretionary. The appellant’s submissions indicate that the documents at issue were in the possession of the appellant’s then solicitors at the time of the arbitration hearing and were not used. There is no explanation of why this course was adopted. Additionally, the appellant’s submissions state that the material would not take the respondent by surprise, as the documents were provided by the respondent to the appellant. The respondent’s submissions contradict that statement in respect of the material from Ms Rowe (documents 2 to 5) and Dr Lal (document 6). The respondent having disputed the submission that documents 2 to 6 were in its possession, the appellant has not put on any submissions in reply to clarify this discrepancy, or to argue why its position should be accepted. It would not, in my view, be appropriate to give leave for the admission of the fresh or additional evidence, in the exercise of the Commission’s discretion, in any event.
The application for leave pursuant to s 352(6) is refused.
APPELLANT’S SUBMISSIONS ON THE EXTENSION OF TIME
The appellant sets out four points (which are described as “grounds”) under which it makes submissions going to the extension. These are:
Point 1: It would cause demonstrable and substantial injustice if time were not extended
The appellant submits that he instructed his current solicitors on 19 May 2020, on which date they requested the file from his previous solicitors. It is submitted his current solicitors then worked promptly to obtain funding, brief counsel and lodge the appeal.[62]
Point 2: The impact of COVID-19 amounts to exceptional circumstances as the appellant was unable to obtain funding for a substantial period
[62] Appellant’s submissions on time, [1]–[3].
The appellant submits his current solicitors obtained his file on 20 May 2020 and at 12.27 pm on that day forwarded a funding request to ‘WIRO’. The appellant submits this was followed up twice on 21 May 2020. The appellant submits that neither the manager at ‘WIRO’ who previously managed the claim, nor that person’s supervisor, were available; all staff were “working from home due to COVID-19 restrictions”. His solicitors briefed counsel on 21 May 2020. On Friday 22 May 2020, his solicitors obtained verbal approval to brief counsel to advise on the prospects of appeal. His counsel gave advice on prospects on Monday 25 May 2020 and this was forwarded to ‘WIRO’ at about 2 pm that day with a request for funding. Approval of conditional funding was received at 7.45 am on 26 May 2020.[63]
[63] Appellant’s submissions on time, [4]–[12].
Point 3: The matter involves a substantial amount of paperwork that required reviewing
The appellant submits the file constituted six volumes which made briefing counsel and preparing submissions difficult.[64]
[64] Appellant’s submissions on time, [13]–[14].
Point 4: The respondent would not be substantially disadvantaged if leave were granted
The appellant describes its initial unsuccessful attempts to lodge the appeal, the first of which was at 5.02 pm on 26 April 2020. It refers to its second attempt on 27 May 2020 at 6.59 pm, and to the rejection letter for which was received on 29 May 2020 at 10.45 am. The appellant submits that on 29 May 2020 notice of an intention to provide late submissions was forwarded to the respondent.[65]
[65] Appellant’s submissions on time, [15]–[18].
RESPONDENT’S SUBMISSIONS ON THE EXTENSION OF TIME
The respondent opposes the application to extend time. The respondent submits there is no evidence about the actions of the previous solicitors from the date of the determination, 28 April 2020, until 19 May 2020 when the appellant’s current solicitors began to act. [66]
[66] Respondent’s submissions, [2.1(1)]–[2.1(2)].
The respondent submits that ‘exceptional circumstances’ are required to extend time, and this requirement is not generally satisfied by “administrative error”[67] or by “administrative errors by a legal practitioner”[68].[69]
[67] Department of Corrective Services v Buxton [2007] NSWWCCPD 55.
[68] O’Carroll Constructions Pty Ltd v Burgess [2007] NSWWCCPD 224.
[69] Respondent’s submissions, [2.1(3)]–[2.1(4)].
THE LEGISLATION AND RULES
Section 352(4) of the 1998 Act provides:
“An appeal can only be made within 28 days after the making of the decision appealed against.”
Rule 16.2 of the Rules relevantly provides:
“(5) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.
(6) A party who seeks an extension of time as referred to in subrule (5) must—
(a)as soon as practicable give notice to the other parties of the intention to seek the extension, and
(b)lodge and serve with the application to appeal an application for the extension of time, including full details of the arguments to be put in favour of granting the extension.”
CONSIDERATION
Gallo v Dawson has been consistently applied in the Commission dealing with applications for the extension of time in which to bring an appeal. In that decision McHugh J said:
“This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v. No.2 Public Service Appeal Board (1973) 2 NZLR 86, at p 92; Jess v. Scott (1986) 12 FCR 187, at pp 194-195. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v. Grigg [1967] VicRp 113; (1967) VR 871, at p 872; Hughes, at pp 263-264; Mitchelson v. Mitchelson (1979) 24 ALR 522, at p 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has ‘a vested right to retain the judgment’ unless the application is granted: Vilenius v. Heinegar (1962) 36 ALJR 200, at p 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v. Cumarasamy (1965) 1 WLR 8, at p 12; (1964) 3 All ER 933, at p 935:
‘The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.’”[70]
[70] [1990] HCA 30; 93 ALR 479; 64 ALJR 458 (Gallo), [2].
The above includes the need for an applicant for an extension of time to explain delay.[71]
[71] Gallo, [3]. See also Iovanescu v McDermott [2004] NSWCA 106.
A Presidential member, dealing with an application to extend time pursuant to r 16.2(5), is required to consider the presence of ‘exceptional circumstances’.
In Bryce v Department of Corrective Services Allsop P (as his Honour then was), dealing with what is now r 16.2(5) of the Rules, said:
“In my view, the phrase ‘in exceptional circumstances’ finding its place in the middle of the rule is to be dealt with as a matter to be considered by the Presidential member as a matter within jurisdiction as opposed to a precondition to the operation of jurisdiction.”[72]
And:
“Whether or not there are exceptional circumstances and whether in those circumstances it is shown to the satisfaction of the Deputy President that demonstrable or substantial injustice would occur if leave were not granted is a composite expression in the rule to be dealt with within jurisdiction, and all of the matters identified by the Deputy President in [23] can be seen as relevant to the consideration of that composite expression.”[73]
[72] [2009] NSWCA 188 (per Allsop P, Beazley and Giles JJA agreeing) (Bryce), [8].
[73] Bryce, [10].
Campbell JA, in Yacoub v Pilkington (Australia) Ltd,[74] dealt with the phrase “exceptional circumstances”, in the context of r 31.18(4) of the Uniform Civil Procedure Rules 2005. His Honour said:
“(a) Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered: R v Kelly (Edward) [1999] UKHL 4; [2000] 1 QB 198 (at 208).
(b) Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors: R v Buckland [2000] EWCA Crim 1; [2000] 1 WLR 1262; [2000] 1 All ER 907 (at 1268; 912–913).
(c) Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No 295 [2007] FCA 388 (at [26]).
(d) In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision: R v Buckland (at 1268; 912–913).
(e) Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case: Awa v Independent News Auckland [1996] 2 NZLR 184 (at 186).”
[74] [2007] NSWCA 290 (Yacoub), [66].
Campbell JA in Yacoub said that in deciding whether ‘exceptional circumstances’ were present, it was necessary to bear in mind the statement of objectives in ss 56–59 of the Civil Procedure Act 2005. I have concluded that where the phrase appeared in the former r 16.2(12) of the Commission’s Rules (the precursor to r 16.2(5)), it was appropriate to consider the phrase in the context of the ‘System objectives’ and ‘Procedure before the Commission’, described in ss 3 and 354 respectively, of the 1998 Act.[75]
[75] Vaughan v Secretary, Department of Education [2018] NSWWCCPD 1, [23].
In Webb v Penrith Rugby Leagues Club Ltd,[76] Keating P said:
“On several occasions, the Commission has held that inadvertence or administrative errors by legal practitioners do not amount to exceptional circumstances that justify an extension of time to appeal (Department of Education and Training v Mekhail [2006] NSWWCCPD 1 and Department of Corrective Services v Buxton [2007] NSWWCCPD 55).”[77]
[76] [2016] NSWWCCPD 16 (Webb).
[77] Webb, [24].
The explanation of delay
The period by which the appeal is out of time is relatively short, a matter of days. The appellant describes 26 May 2020 (the last date when an appeal could be lodged in time) as “the due date for submissions”. The appellant’s submissions describe events during the period from 19 May 2020 (when his current solicitors obtained instructions) until 29 May 2020 (when the appeal was successfully lodged). The respondent submits that the period from 28 April 2020 (the date of the decision) until 19 May 2020 is unexplained.[78]
[78] Respondent’s submissions, [2.1(2)].
The period up to 19 May 2020 is not dealt with in the appellant’s submissions, but there are documents attached to the appeal which are relevant. I regard such material as being before me for the purposes of the application to extend time. There is email correspondence between Samantha Moon, a law clerk with the appellant’s solicitors, and “ILARS Contact” dating from 20 May 2020 to 26 May 2020. This correspondence is referred to in the appellant’s submissions.[79] It indicates that, before 19 May 2020, “ILARS” had granted legal aid to the appellant’s previous solicitors “to brief counsel and to lodge an appeal”.[80]
[79] Appellant’s submissions, [12].
[80] Email from appellant’s solicitors to “ILARS Contact” dated 20/5/20.
The evidence does not extend to when the appellant was made aware of the arbitral decision, the appellant’s reasons for instructing further solicitors or any associated delay. It does not extend to when steps were first taken to seek a grant of funding or what was done by the appellant’s previous solicitors in this regard. The explanation is, to this extent, inadequate. It is consistent with the appellant obtaining advice from his former solicitors relevant to the possibility of appeal and with those solicitors seeking a grant of legal aid with a view to appealing.
Whilst there are deficiencies, the explanation of delay, viewed overall, is in my view adequate.
Exceptional circumstances
The appellant argues the impact of the COVID-19 pandemic constitutes ‘exceptional circumstances’ as it delayed a grant of legal aid funding for the appeal by “a substantial period”. The relevant legal funding service is the Independent Legal Assistance and Review Service (ILARS). The Service is conducted through the Workers Compensation Independent Review Office (WIRO). The appellant’s submissions refer to the dealings with this Service as being with “WIRO”. For convenience, I have adopted that description. I have assumed, for the purposes of this application, the correctness of the factual assertions made in the appellant’s submissions on this topic.
The appellant’s submissions state that the current solicitors forwarded an email to WIRO on 20 May 2020 at 12.27 pm, and then followed it up by telephone on 21 May 2020, twice. On the first of these telephone enquiries the “previous manager” of the claim and her supervisor were not available. The second telephone call to WIRO that day was made at 1:31 pm, a little over 24 hours after the initial request for funding by the current solicitors. The appellant submits “[s]taff were all working from home due to COVID-19 restrictions”. The source of this information is unidentified. The appellant submits that on 22 May 2020 his solicitors telephoned WIRO at an unspecified time and were connected to a named individual, who said that funding was approved to brief counsel on the prospects of success, but an advice was required before funding would extend to the “submissions”. The appellant says, in his submissions, that an advice was obtained from counsel and forwarded to WIRO at 2:02 pm on 25 May 2020. It is stated that at 7:54 am on 26 May 2020 approval of “conditional funding” was received.
The timeline reveals that the appellant’s solicitors contacted WIRO on 20 May 2020 at 12:27 pm. On 22 May 2020 at an unspecified time the solicitors spoke to an officer of WIRO who told them that funding was approved for an advice on prospects, which was required before the grant would be extended to costs of the appeal more generally. An advice was forwarded by the solicitors to WIRO on 25 May 2020 at 2:02 pm. On 26 May 2020 at 7:54 am WIRO approved conditional funding for an appeal.
There were difficulties in the lodgment of the Appeal, associated with an initial failure to utilise the portal, and with a persistent failure to comply with Practice Direction No 6 (see [34] to [35] above). The appellant has not submitted that such matters constitute ‘exceptional circumstances’. The respondent has correctly referred to Presidential decisions stating that inadvertence or administrative error by a legal practitioner do not, as a general rule, constitute ‘exceptional circumstances’. This is consistent with the passage from Webb quoted at [73] above.
There is nothing in the above that would support the conclusion there was any unusual delay in the grant of legal aid funding, much less delay involving a “substantial period”. Both the appellant’s solicitors and WIRO appear to have acted with commendable haste. Assuming that relevant officers of the legal funding service were working from home due to the COVID-19 pandemic, there is nothing that would support a conclusion that the approval of legal aid funding was delayed as a consequence. I reject the submission that ‘exceptional circumstances’ are made out on the basis of a delay in legal aid funding due to the COVID-19 pandemic. This is the only basis on which the appellant argues that ‘exceptional circumstances’ are present. ‘Exceptional circumstances’ are not established. Consistent with Bryce this is a matter that must be considered in dealing with the application to extend time, but it is not a precondition to an extension being made.
Prejudice and other uncontroversial matters
The respondent does not argue it is prejudiced by the delay. It does have a vested right to retain the decision in its favour, subject to the application to extend time. There is nothing in the history of the proceedings or the conduct of the parties which is submitted to militate for or against the application to extend time.
The prospects of success
This involves a consideration of the merits of the appeal.
Grounds Nos. 1 and 2
There is overlap between the submissions dealing with Grounds Nos. 1 and 2, and it is convenient to deal with them together. The submissions deal with two separate arguments, going to the causation argument, and the finding of ‘reasonableness’. It is convenient to deal with these arguments separately.
Appellant’s submissions on Grounds Nos. 1 and 2
The causation issue
The appellant refers to the Arbitrator placing “great reliance” on the report of Dr Whetton, in concluding the injury was ‘predominantly caused’ by the respondent’s actions with respect to the provision of employment benefits. The appellant states that Dr Whetton, in his report, said he had “reviewed all the relevant documents” but failed to identify what these were. The appellant cites Makita (Australia) Pty Ltd v Sprowles.[81] The appellant submits that, as Dr Whetton failed to provide the facts on which he based his assumed knowledge, his opinion “cannot, at law, be regarded”.[82]
[81] [2001] NSWCA 305; 52 NSWLR 705 (Makita).
[82] Appellant’s submissions, [8]–[12].
The appellant submits that, absent the opinion of Dr Whetton, the medical evidence consists of Dr Allan, medical progress notes from 7 April 2017 to 5 July 2019, WorkCover certificates and correspondence from Dr Tut. It submits Dr Allan’s view was that events in “2016 and into 2017” caused the injury. This included the “serious safety concerns” raised by the appellant. The appellant refers to the report of Dr Lal, who had a history of the appellant being “unduly influenced to not follow correct procedures and reporting routines at work”. The appellant submits the Arbitrator “could not lawfully have found the predominant cause of the [appellant’s] injury was related to the provision of employment benefits on the evidence before her”.[83]
The ‘reasonableness’ issue
[83] Appellant’s submissions, [13]–[17].
The appellant submits it is “arguable” that there was error in the Arbitrator’s finding that the respondent’s relevant actions were ‘reasonable’. He quotes from the passage in Irwin, quoted by the Arbitrator at [168] of the reasons (see [21] above).[84] He lists the following specific matters:
(a) Mr Bourke applied pressure on the appellant to sign the new contract of employment, saying “You made Richard so angry that he has not spoken about anything else, you are not doing yourself any favours.”
(b) Mr Bourke attended at the appellant’s home to deliver mail that had already been forwarded by email. The appellant submits this was not reasonable and was intended to intimidate.[85]
(c) In the appellant’s 2016 appraisal Mr Bartkowiak referred to the appellant’s inability to embrace change. The comment was included retrospectively and was not discussed with the appellant. Its purpose was to intimidate and antagonise, to punish the appellant for his “reasonable demands” that the respondent comply with “safety and environmental requirements”.[86]
(d) The appellant’s motor vehicle was removed when no agreement had been reached on changes to the employment contract.
(e) Personal emails of the appellant regarding his son were disseminated. There was “rumour mongering” that the appellant was having marital difficulties. This was not reasonable conduct.[87]
[84] Appellant’s submissions, [18]–[19].
[85] Appellant’s submissions, [20], [22]–[23].
[86] Appellant’s submissions, [20], [24].
[87] Appellant’s submissions, [20], [25].
The appellant refers to a passage in the reasons at [87], in which the Arbitrator quoted from the statement of Mr Mate. Mr Mate referred to the appellant saying he would not hand his car back, and to some other employees hounding him about his decision. Mr Mate said “This was what [the appellant] spoke to me about and was saying Richard told him this and Shane told him that.”
Respondent’s submissions on Grounds Nos. 1 and 2
The causation issue
The respondent submits the point about Dr Whetton’s report was not taken at the hearing and the appellant cannot take it now. The respondent submits the point goes to the admission or not of the report. The respondent submits there were also difficulties with the report of Dr Allan, the respondent having taken the point that Dr Allan was not provided with a copy of the appellant’s statement.[88]
[88] Respondent’s submissions, [2.8(1)]–[2.8(3)].
The respondent notes the appellant’s submissions refer to Dr Lal’s report dated 21 February 2019. This is part of the material the appellant seeks to have admitted pursuant to s 352(6). It was not part of the proceedings before the Arbitrator. The Arbitrator could not have made an error in how she dealt with evidence that was not before her.[89]
[89] Respondent’s submissions, [2.8(4)]–[2.8(5)].
The respondent submits the Arbitrator’s finding was open to her and supported by the weight of the evidence.[90]
The ‘reasonableness’ issue
[90] Respondent’s submissions, [2.8(6)].
The respondent submits these submissions go to evidentiary matters that are not medical grounds. It is submitted the submission summarised at [88(e)] above is emotive and not grounded in fact. There was no evidence the appellant was aware of, or affected by, rumour mongering.
Consideration of Grounds Nos. 1 and 2
The causation issue
The starting point of the appellant’s argument on this issue is a submission that, because Dr Whetton did not set out what documents he was given to review when he examined and reported on the appellant, his report failed to comply with the requirements of Makita. It is submitted that Dr Whetton’s opinion “cannot be regarded”. The appellant then reviews the medical evidence without any regard for Dr Whetton’s opinion, and concludes with a submission “the Arbitrator could not lawfully have found the predominant cause of the [appellant’s] injury was related to the provision of employment benefits on the evidence before her”.[91] This is a submission that it was not open to the Arbitrator to make the finding which she did.
[91] Appellant’s submissions, [13]–[17].
In Hancock v East Coast Timber Products Pty Limited Beazley JA (as her Honour then was) said:
“82. Although not bound by the rules of evidence, there can be no doubt that the Commission is required to be satisfied that expert evidence provides a satisfactory basis upon which the Commission can make its findings. For that reason, an expert’s report will need to conform, in a sufficiently satisfactory way, with the usual requirements for expert evidence. As the authorities make plain, even in evidence-based jurisdictions, that does not require strict compliance with each and every feature referred to by Heydon JA in Makita to be set out in each and every report. In many cases, certain aspects to which his Honour referred will not be in dispute. A report ought not be rejected for that reason alone.
83. In the case of a non-evidence-based jurisdiction such as here, the question of the acceptability of expert evidence will not be one of admissibility but of weight. This was made apparent in Brambles Industries Limited v Bell [2010] NSWCA 162 at [19] per Hodgson JA. That is the way that Keating DCJ dealt with Dr Summersell's evidence in this case, so that is not the relevant error.[92]
[92] [2011] NSWCA 11; 80 NSWLR 43; 8 DDCR 399 (Hancock), [82]–[83].
In the context of the Commission, the appellant’s submission on Dr Whetton’s report should be understood as one that the report was deprived of all weight in the circumstances. The respondent submits the argument, that the opinion of Dr Whetton was deprived of any weight due to an alleged failure to comply with Makita, was not made at the arbitration hearing. I have read the transcript.[93] The respondent’s submission on this point is accurate. The appellant’s counsel addressed the Arbitrator on alleged deficiencies in Dr Whetton’s history, which were argued to affect the weight attached to the report. It was not submitted the weight of the report was affected by a failure to describe the material given to the doctor to review.
[93] Transcript of arbitration hearing, 25/3/20 (T).
In Brambles Industries Limited v Bell, Hodgson JA said:
“… the obligation to give reasons has to be considered in the light of the issues raised for consideration by the parties.”[94]
[94] [2010] NSWCA 162; 8 DDCR 111 (Bell), [22].
In the same case McColl JA said:
“… a failure to address a matter which was not raised before the Deputy President as an identifiable issue is not a matter in respect of which an error in point of law can be identified in this Court. As was said in Watson v Qantas Airways Limited [2009] NSWCA 322 at [13], if a matter was not raised before the Deputy President, he could not commit an error of law in failing to deal with it. A similar observation was made recently by Heydon J in Republic of Croatia v Sneddon [2010] HCA 14 at [88].”[95]
[95] Bell, [30].
In Metwally v University of Wollongong, the High Court stated:
“It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.”[96]
[96] [1985] HCA 28; 60 ALR 68; 59 ALJR 481, [7]. See also Coulton v Holcombe [1986] HCA 33; 162 CLR 1; 60 ALJR 470; 65 ALR 656.
The Arbitrator did not err in failing to deal with a Makita argument, based on Dr Whetton’s failure to describe the material to which he had access, when the argument was not made to her. The appellant cannot make this argument on appeal, it not having been raised at first instance. The weight to be attributed to Dr Whetton’s report is not affected in the way for which the appellant argues on this appeal.
The appellant’s analysis of the medical evidence then proceeds with reference to the reports of Dr Allan and Dr Lal, ignoring the report of Dr Whetton. The Arbitrator described the report of Dr Allan as “the main medical evidence” on which the appellant relied.[97] She summarised the contents of the report and quoted from it at length.[98] She correctly observed that there was “no indication that [Dr Allan] has been provided with [the appellant’s] statement”,[99] a point which was made at the arbitration hearing.[100]
[97] Reasons, [115].
[98] Reasons, [115]–[121].
[99] Reasons, [122].
[100] T 18.29–34.
The respondent correctly observes that the report of Dr Lal was not in evidence before the Arbitrator. The respondent submits the Arbitrator “cannot be held to have made an error in relation to evidence that was not before her”.[101] I have dealt above with an application by the appellant pursuant to s 352(6) of the 1998 Act, to rely on various documents (including Dr Lal’s report) that were not put into evidence before the Arbitrator. That application was refused.
[101] Respondent’s submissions, [2.8(4)]–[2.8(5)].
The appellant’s argument, that the Arbitrator could not lawfully have made the causation finding which she did, is based on two propositions that are not made out. The first is that there was a deficiency in Dr Whetton’s report, such that the Arbitrator should have attached no weight to it at all. The second is that Dr Lal’s report was in evidence. The Arbitrator’s analysis of the causation issue took account of the lay and medical evidence that was before her. She gave reasons for concluding as she did. The appellant’s submissions on the causation issue do not identify specific error in the Arbitrator’s reasoning, in dealing with the evidence that was before her. The appellant’s challenge in Ground No. 1, to the causation finding, does not have reasonable prospects of success.
The ‘reasonableness’ issue
The appellant, in the submissions summarised at [88] above, refers to various factual matters. The matters identified at (b), (c) and (e) at [88] above are submitted, in the submissions dealing with Ground No. 2, to have been unreasonable. In relation to the matter appearing at (b), the appellant submits that sending Mr Bourke to deliver a letter to the appellant’s home was “intended to intimidate”.[102] In relation to Mr Bartkowiak’s reference to the appellant’s “inability to embrace change”, it is submitted this was unreasonable as it was retrospective, was not discussed with the appellant, and was to intimidate and antagonise, to punish the appellant. It is submitted the dissemination of private emails and rumour mongering was not reasonable.
[102] Appellant’s submissions, [22]–[23].
The appellant, in a document he drafted in response to the s 74 notice dated 10 August 2018, listed ten points in which he disputed EML’s denial of liability.[103] At the arbitration hearing, the appellant’s counsel referred to those points and said that he relied on those matters “concerning why the employer did not act reasonably”.[104] The Arbitrator referred to this submission. She did not accept that all of the ten points were relevant, saying that some related to investigation of the claim rather than actions by the respondent, and other of the events occurred after the appellant ceased work.[105] The Arbitrator specifically referred to a submission by the appellant’s counsel that “particularly relevant” were “pressure to sign the contract, insinuating termination if [the appellant] did not agree, and the private discussion with Mr Bourke on 15 May”.[106] The Arbitrator dealt with these matters.
[103] ARD, pp 104–105.
[104] T 14.33–15.9.
[105] Reasons, [170].
[106] Reasons, [171].
The Arbitrator said that “none of the correspondence or statements”, other than those of the appellant himself, appeared to raise any possibility that the appellant risked termination.[107] In relation to the meeting on 15 May 2017, the Arbitrator described Mr Bourke’s description of the meeting as being “detailed and [it] sets out the matters discussed and the explanations provided”. The Arbitrator accepted Mr Bourke’s description of that meeting.[108]
[107] Reasons, [172].
[108] Reasons, [179]–[181].
The Arbitrator dealt with multiple matters going to the reasonableness of the respondent’s actions regarding the provision of employment benefits to the appellant. She referred to negotiation and consultation with the workforce, the desire to update employment contracts, the need to bring all employees under the same terms and conditions, and a consideration of the cost of supplying vehicles following implementation of fringe benefits tax.[109] The appellant does not submit the Arbitrator applied a wrong test.
[109] Reasons, [177].
In Department of Education & Training v Sinclair (a ‘discipline’ case) Spigelman CJ said: “More often than not it will not be possible to isolate the effect of a single step. In such a context the ‘whole or predominant cause’ is the entirety of the conduct with respect to, relevantly, discipline.”[110] In the circumstances of the current matter, it is necessary to have regard to the whole of the employer’s relevant conduct. In Sinclair Spigelman CJ continued:
“His Honour’s analysis, as that of the Arbitrator, appears to assume that any specific blemish in the disciplinary process, however material in a causative sense or not, was such as to deprive the whole course of conduct of the characterisation ‘reasonable action with respect to discipline’. In my opinion, a course of conduct may still be ‘reasonable action’, even if particular steps are not.”[111]
[110] [2005] NSWCA 465; 4 DDCR 206 (Sinclair), [96].
[111] Sinclair, [97].
The course the appellant takes is to seek to identify specific steps which are asserted to be unreasonable. Even if some specific steps could be regarded as other than reasonable this would not, of itself, lead to a conclusion that the course of the respondent’s conduct, viewed as a whole, was not reasonable. It is necessary to have regard to the whole of the process. The appellant’s submissions do not direct themselves to whether the respondent’s relevant conduct, viewed as a whole, was reasonable.
The question of whether an employer’s actions or proposed actions are reasonable, for the purposes of s 11A(1), involves a broad evaluative judgment. In Northern NSW Local Health Network v Heggie, Sackville AJA (Ward JA agreeing) said:
“71. It is not necessary in this case to explore the precise limits of an appeal under s 352(5) of the [1998] Act seeking to challenge findings of fact. However, as Roche DP pointed out in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25, at [20], the observations of Allsop J in Branir Pty Ltd v Owston Nominees (No 2) need to be borne in mind, particularly (I would add) where the challenge is to an evaluative judgment such as the reasonableness of actions by an employer with respect to discipline. Allsop J said, in relation to the application of the principle in Warren v Coombes, (at [28]) that:
‘in [the] 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.’
72. 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, per Mason and Deane JJ.”[112]
[112] Heggie, [71]–[72].
The Arbitrator gave reasons at [167] to [182] of her decision for her conclusion that the respondent’s relevant actions were ‘reasonable’. The appellant’s submissions do not meaningfully challenge the correctness of the Arbitrator’s reasoning and conclusions. Rather the appellant nominates alleged blemishes. This is accompanied by assertions that various of the alleged blemishes were intended to intimidate or to antagonise. These assertions are not based on direct evidence. To the extent to which the appellant’s submissions should be read as going to whether an inference should be drawn, that the respondent’s actions were taken in bad faith, such a course is not specifically submitted on. Such a course would not be more than a matter of conjecture.[113] There is no basis for the assertion that ‘rumour mongering’ represented part of the actions of the respondent with respect to the provision of employment benefits to the appellant. The respondent correctly observes the term is “emotive”.
[113] Luxton v Vines [1952] HCA 19, 85 CLR 352, [8], Flounders v Millar [2007] NSWCA 238, [35].
The appellant’s challenge to the Arbitrator’s finding on ‘reasonableness’ does not establish error in how the Arbitrator dealt with the issue, dealing with the course of the relevant conduct viewed as a whole.
Grounds Nos. 1 and 2 do not have reasonable prospects of success.
Ground No. 3
Appellant’s submissions on Ground No. 3
The appellant submits the Arbitrator made factual errors. The first alleged error that is identified is at [36] of the reasons, where the Arbitrator is said to have found:
“Mr Ceccato ceased work on 18 May 2017. He said that he had not previously consulted a medical practitioner about how he was feeling. He said that ‘Workers Compensation was not a consideration at that time because I was mindful of it affecting the [respondent’s] MTI/LTI statistics.’”
The appellant submits this finding was inconsistent with Dr Tut’s clinical note from 17 October 2016 and Ms Rowe’s case note dated 23 February 2017.[114] He submits the Arbitrator “compounded this error of fact”[115] when she found:
“There is no evidence that he suffered a psychological injury before he ceased work nor any complaint to his general practitioner.”[116]
[114] Appellant’s submissions, [28]–[30].
[115] Appellant’s submissions, [31]–[32].
[116] Reasons, [143].
The second alleged error referred to [157] and [165] of the reasons where the Arbitrator said:
“157. There is no contemporaneous evidence that the four broad issues or any perceived interference in his role contributed to Mr Ceccato ceasing work.”
“165. There is no evidence that Mr Ceccato’s perception of the way the four broad issues were handled was the predominant cause of his injury or his ceasing work.”
The appellant submits these observations by the Arbitrator are inconsistent with aspects of the lay evidence.
Respondent’s submissions on Ground No. 3
The respondent submits that the Arbitrator is being criticised for not having regard to evidence that was not before her. Neither the clinical note of Dr Tut dated 17 October 2016 or the case note from Ms Rowe dated 23 February 2017 were before the Arbitrator. The respondent describes the appellant’s submission in this regard as “unfathomable”.
Consideration of Ground No. 3
The first two of the alleged factual errors is based on a blatant misreading by the appellant of the Arbitrator’s reasons. The appellant’s submissions refer to [36] of the reasons as a finding. It does not purport to be a finding by the Arbitrator. It clearly describes itself as setting out something the appellant said. Its source is to be found in the appellant’s statement dated 15 January 2020 at [119] to [123].[117] The statement described a meeting with Mr Bourke on 15 May 2017. The statement said that “[a] couple of days after my meeting with Shane [Bourke] I went off work”. It continued: “[p]rior to this time, I had not consulted with a medical practitioner”. The appellant in fact ceased work on 18 May 2017 according to the statement at [124].
[117] ARD, p 27.
The respondent’s submission on this point is also accurate. The clinical notes from Dr Tut attached to the ARD commenced from 7 April 2017. They did not encompass the note dated 17 October 2016 on which the appellant submits. This is apparent from simply reading the index of the supporting documents attached to the ARD, as well as the clinical notes that are attached to the document. The case note of Ms Rowe dated 23 February 2017 was not in evidence, and is the subject of an (unsuccessful) application to admit fresh or additional evidence on this appeal. The Arbitrator’s alleged error involves failing to have regard to evidence that was not before her. It does not need to be restated that the Arbitrator could not err in failing to deal with evidence that was not before her. It also should be noted that the evidence does not suggest that Ms Rowe, a psychologist, is also a “medical practitioner”, which is what the passage at [36] of the reasons refers to.
The sole issue raised by Ground No. 3 is whether the Arbitrator erred in “finding the [appellant] had not started seeing a medical practitioner about how he was feeling prior to ceasing employment”. The above is sufficient to dispose of Ground No. 3. The appellant’s submissions at [33] to [42] do not relate to the pleaded ground. Ground No. 3 does not have reasonable prospects of success.
Ground No. 4
Appellant’s submissions on Ground No. 4
The appellant submits that “[a]t various parts in her decision, the Arbitrator preferred the evidence of other staff members of [the respondent] over the [appellant].” He refers to the reasons at [162] where the Arbitrator said:
“Mr Ceccato’s description of those issues is at odds with the statements of other staff of [the respondent]. An example is the LTI [lost time injury] issue, in respect of which Mr Bartkowiak and Ms Lawrence describe factors of which Mr Ceccato may not have been aware and conversations in which he was not involved to explain why they took the action they did. Their explanation is consistent and plausible.”
The appellant refers to a document headed “Injury and Incident Notification and Investigation Process”.[118] The appellant submits:
“In relation to injuries, the actions required to be done in that document, do not appear to have been completed by [the respondent]. The [appellant’s] attempt to follow agreed [respondent] policy and procedure was overridden.
The failure to follow agreed policy and procedure regarding an LTI, would have put [the respondent’s] contract with BSL [Bluescope] in jeopardy. The Arbitrator should have referred the [appellant’s] evidence and rejected the evidence of Mr [Bartkowiak] and Ms Lawrence in that regard.
Their evidence could not have been consistent and plausible as found by the Arbitrator in the COD at 162.”[119]
[118] ARD, pp 41–43.
[119] Appellant’s submissions, [48]–[50].
The appellant refers to a passage from Warren v Coombes, which deals with the approach to be taken by appellate courts in dealing with inferences from undisputed or established facts.[120] He reproduces a passage from Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd which is quoted in part at [30] above.
[120] [1979] HCA 9; 142 CLR 531.
Respondent’s submissions on Ground No. 4
The respondent submits it was open to the Arbitrator, after consideration, to prefer the evidence of one witness over that of another.[121]
[121] Respondent’s submissions, [13]–[15].
Consideration of Ground No. 4
The reasons at [162] refer to the appellant’s “description of those issues”. Read in context, this is a reference to “safety issues”, raised in a conversation between the appellant and Ms Reed on 14 May 2018 (about one year after the appellant ceased his duties with the respondent) referred to in the reasons at [161]. Ms Reed was not employed by the respondent but was the “HR Business Partner for Operations” with Cement Australia, which (along with the Levy Group) had a “joint holding” in the respondent. Ms Reed described the issues as “additional issues I don’t think I was aware of previously”. The first was “a Bluescope ICAM a few years ago where he felt the company had managed it inappropriately”. The second was “a safety incident that happened on site with an employee”, which the appellant believed “was not appropriately recorded as an MTI”.[122]
[122] Ms Reed’s statement 22/6/18, [9], [22] and [31], Reply, pp 95–101.
The Arbitrator referred to Ms Lawrence describing factors of which the appellant may not have been aware. Ms Lawrence referred to a matter involving Mr Gentles. She described some doubt as to whether the fracturing of a dental bridge occurred at work as Mr Gentles had a pre-existing condition. She said that medical reports indicated damage due to the age of the dental plate and the bones in Mr Gentle’s mouth. Mr Bartkowiak indicated the business could assess whether the incident was “reported in the stats”. Ms Lawrence said that after discussion with Bluescope there was a decision that it not be reported as a time loss injury, although Mr Gentles was covered with insurance. She could not recall the appellant “having any particular concerns about the outcome”.[123]
[123] Ms Lawrence’s statement, [14]–[15], 22/6/18, Reply, p 90.
This episode was dealt with by Mr Bartkowiak in his statement. He said the appellant claimed undue pressure was placed on him not to follow correct process. The matter was recorded as “a report only”. Mr Bartkowiak said he had discussions with Ms Lawrence, the Chairman of the Board and “our [Bluescope] counterpart”. From those discussions it was agreed the incident was not an LTI and would not be classed as such. Mr Bartkowiak said that the appellant did not realise the determination was not hidden and was made with the Chairman and a Bluescope representative.[124]
[124] Mr Bartkowiak’s statement 16/6/18, [58], Reply, p 68.
The appellant referred to the above in his statement. He described the meeting with Ms Reed, saying he felt his integrity was compromised carrying out his role, and “felt we were deceiving [Bluescope]”. He said it was not in his nature to “mislead and be a party to cover up things. This related to significant contractual items, including an LTI (lost time injury).”[125]
[125] Appellant’s statement 15/1/20, [155], ARD, p 32.
The appellant’s submissions refer to a failure to follow agreed policy and procedure which would have put the respondent’s contract with Bluescope in jeopardy. The appellant’s version refers to “deceiving” Bluescope. The Arbitrator, dealing with this incident, simply noted there were factors of which the appellant may not have been aware, which explained why the respondent took the action it did. The evidence of Mr Bartkowiak and Ms Lawrence clearly indicates the decision about how the incident was reported was a joint decision, taken with the agreement of Bluescope.
There is no coherent submission dealing with how the reasons at [162] involve error on the Arbitrator’s part. She described the evidence which she accepted as plausible. The evidence of the two lay witnesses, which she accepted on the point, was mutually consistent. The reasons at [162] did not involve a rejection of the appellant’s evidence, simply an acceptance that Mr Bartkowiak and Ms Lawrence were aware of factors that were unknown to the appellant. The appellant has not established any appealable error in this regard.
There is no submission by the appellant that deals with how, if the alleged error was made out, it would have affected the result. Such an error would not have impacted the correctness of the finding that the injury resulted predominantly from reasonable action of the respondent with respect to the provision of employment benefits, which is the finding the subject of the appeal. The way in which this ground is framed contains a general assertion that at various parts in her decision the Arbitrator preferred the evidence of other staff over that of the appellant. The point dealt with above is the only specific occasion of any such error that is alleged. The general assertion does not require further consideration.
Ground No. 4 does not have reasonable prospects of success.
Another matter raised in the appeal
The appellant has lodged “Supplementary Submissions Re Transcript dated 25 March 2020”. That document states that the Arbitrator misapprehended the appellant’s submissions. The appellant submits his case was presented on the basis that his injury resulted from a combination of both the “contractual issues” and the “workplace difficulties”. This is consistent with the Arbitrator’s finding that the injury resulted from both the actions with respect to the provision of employment benefits, and from the other workplace difficulties. It would not, if made out, affect the result.
Conclusion on the prospects of success
After a full consideration of the various grounds raised, the appeal does not have any reasonable prospects of success.
CONCLUSION
The appellant has not demonstrated the presence of ‘exceptional circumstances’. The appeal does not have reasonable prospects of success. In all of the circumstances, loss of the right to appeal would not work demonstrable and substantial injustice.
DECISION
The appellant’s application to extend the time for making this appeal pursuant to r 16.2(5) of the Workers Compensation Commission Rules 2011 is refused.
Michael Snell
DEPUTY PRESIDENT
14 September 2020
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