Chattha v Malik t/as Malik Cabs - [2017] NSWWCCPD 42

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Chattha v Malik t/as Malik Cabs [2017] NSWWCCPD 42
APPELLANT:	Ishtiaq Chattha
FIRST RESPONDENT:	Anwar Malik t/as Malik Cabs
SECOND RESPONDENT:	Workers Compensation Nominal Insurer
THIRD RESPONDENT:	Shaukat Rana t/as Rana Spare Parts
INSURER:	First Respondent: Uninsured
Second Respondent: Insurance & Care NSW
Third Respondent: Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-5156/16
ARBITRATOR:	Ms D Moore
DATE OF ARBITRATOR’S DECISION:	7 December 2016
DATE OF APPEAL DECISION:	26 September 2017
DATE OF APPEAL HEARING:	6 September 2017
SUBJECT MATTER OF DECISION:	Alleged factual error in dealing with medical evidence; procedural fairness: application of Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 and Seltsam Pty Limited v Ghaleb [2005] NSWCA 208; 3 DDCR 1; the rule in Browne v Dunn (1893) 6 R 67 in the Commission; hearsay evidence in the Commission: Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282; 13 DDCR 351
PRESIDENTIAL MEMBER:	Acting President Michael Snell
HEARING:	Oral
REPRESENTATION:	Appellant:	Mr A Campbell, instructed by Buttar, Caldwell & Company
First Respondent:	Unrepresented, no appearance
Second and Third Respondents:	Mr J Dodd, instructed by HWL Ebsworth
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 7 December 2016 is revoked, as regards the awards in favour of the first and second respondents. The Certificate of Determination is confirmed as regards the award in favour of the third respondent. 2. The matter, as regards the proceedings by the appellant against the first and second respondents, is remitted for re-determination by another Arbitrator.

INTRODUCTION

Ishtiaq Chattha (the appellant) was a deemed worker in the employ of Anwar Malik t/as Malik Cabs (the first respondent) and Shaulkalt Rana t/as Rana Spare Parts (the third respondent), pursuant to cl 10 of Sch 1 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The appellant was a bailee taxi driver. He alleges that he suffered injury in an incident in his deemed employment with the first respondent on 3 November 2010, lifting luggage into the boot of a taxi. He alleges injury due to the ‘nature and conditions’ of his deemed employment thereafter, with each of the first and third respondents. The Workers Compensation Nominal Insurer (the second respondent) is a party to the proceedings as the first respondent was uninsured for the purposes of the Workers Compensation Legislation.
The appeal is against an arbitral decision that there be awards in favour of all of the respondents, on the basis that the appellant had not established that he suffered injury as alleged. The appeal relates essentially to alleged errors in the fact finding process.

BACKGROUND

The appellant states that he was injured on 3 November 2010 at approximately 5 pm, whilst picking up a passenger at Sydney International Airport. The appellant was in the deemed employ of the first respondent at the time. He said that he “had three or four heavy bags, weighing approximately 30 kilograms”. He said:
“I lifted the first bag into the boot of the taxi and felt severe pain in my back travelling down my right leg. I fell to the ground and was unable to move.”
The appellant described resting “for a while”, and then driving the taxi back to base. He said that he telephoned the first respondent and told him what had happened, and then went home. He said he could not attend work on the next day, and telephoned the first respondent to tell him this. He tried to go back to work on 6 November 2010, but when getting into his private car at home his back spasmed again, and he was unable to drive. He was taken to Canterbury Hospital by ambulance. The appellant stated that he was off work for “about a week” and then resumed driving a taxi for the first respondent. He said that the first respondent told him that there was “no need to make a claim”. The first respondent “began to take shifts off me”, and eventually told the appellant, by the end of 2010, “we cannot provide you with any more shifts”.
The appellant said that he started driving for the third respondent, on a casual basis, in December 2010. He stated that he told the third respondent of his pain in the back and legs, and was told that he should contact his previous employer in relation to any workers compensation claim. He said that on 7 August 2011 “the pain became too much to bare [sic]” and he was unable to work. The appellant resumed working with the third respondent on 20 February 2012, and worked varying hours driving a taxi until November 2013. The appellant stated that since April 2016 he has driven “15 to 17 hours per week, supplemented by the pension”.
The appellant completed a claim form dated 5 September 2011, directed to the first respondent, which is stamped as being received in the “WorkCover Claims Branch” (which administered uninsured claims at the time) on 1 December 2011. That office issued a s 74 notice dated 6 January 2012. It asserted that there was no evidence that s 9A of the Workers Compensation Act 1987 (the 1987 Act) was satisfied. The notice contained a discussion of evidence, including clinical material from treating medical practitioners. It said that the author could not confirm the alleged injury on 3 November 2010, or incapacity from it. It said that, if there was injury due to the “nature and conditions of employment”, the third respondent was the last relevant employer.
The appellant’s solicitors made a further claim on the Workers Compensation Nominal Insurer by letter dated 27 June 2012. It issued a s 74 notice dated 6 July 2012. It denied injury with the first respondent, and denied that the first respondent was the last relevant employer for the purposes of the ‘disease’ provisions. It said that the last such employer, the third respondent, was “not uninsured”.
The appellant commenced previous proceedings involving the same parties. Matter no 11658/12 was discontinued by consent at a telephone conference on 20 February 2013, conducted by me in my then capacity as a Senior Arbitrator. Matter no 5584/13 was discontinued by consent before Arbitrator Brown on 23 July 2014.
The appellant made another claim on the second respondent by letter dated 26 July 2016. The second respondent issued a s 74 notice dated 9 August 2016. It denied ‘injury’, the satisfaction of s 9A of the 1987 Act, and that the first respondent was the last relevant employer for the purposes of the ‘disease’ provisions. It denied quantum and incapacity.
The appellant made a claim on the third respondent dated 26 July 2016, directed to its insurer, Allianz Workers Compensation (NSW) Limited. The insurer issued a s 74 notice dated 10 August 2016. It denied that the appellant was a ‘worker’, ‘injury’, the entitlement to lump sum compensation, and that notice of injury and the making of a claim had taken place within the times stipulated in the legislation.

THE ARBITRAL PROCEEDINGS AND DECISION

The current proceedings were commenced by Application to Resolve a Dispute registered on 7 October 2016 (the Application). The matter was listed for arbitration hearing on 23 November 2016. Mr A Campbell, instructed by Mr Buttar appeared for the appellant. Mr Dodd appeared for the second and third respondents. There was no separate appearance for the first respondent, although the second respondent was liable for the payment of compensation that may have been payable by the uninsured first respondent. There were no applications to cross-examine or to adduce oral evidence. The Arbitrator referred to the steps that had been taken to serve the first respondent with documents in the matter. She said that she was “satisfied that all attempts were being made to serve Mr Malik with the documents, that he has failed to appear” (T1.32–2.9).
The matter proceeded on the documentary evidence, counsel made submissions, and the Arbitrator reserved her decision. Mr Dodd announced that the issue of ‘worker’ was no longer raised by the respondents. The Commission issued a Certificate of Determination dated 7 December 2016, accompanied by 11 pages of the Arbitrator’s reasons (reasons).
The Arbitrator noted that the principal issue was ‘injury’, and dealt with this first. She referred to the appellant’s statement dated 6 October 2016, and to the medical evidence, including the entries in records of treating doctors. She said that she was “not satisfied that there was any creditable evidence that the [appellant] injured his back in the employ of the third respondent” (reasons at [52]). She referred to evidence dealing with that issue. She entered an award for the third respondent (reasons at [55]).
The Arbitrator referred to the decision in Davis v Council of the City of Wagga Wagga [2004] NSWCA 34; 4 DDCR 358 (Davis) and said that she “accepted that care must be taken in assessing the weight of the contents of clinical notes and records”. She described “the most contemporaneous evidence” as the notes from Dr Houfani, Canterbury Hospital and Dr Habib. She said that “[n]owhere in those records is there any mention of the alleged incident on 3 November 2010”. The Arbitrator referred to Dr Habib, who in his report of 6 December 2010 recorded a “long history of back pain without leg radiation”. The report did not refer to the pleaded incident on 3 November 2010.
On admission to Canterbury Hospital on 6 November 2010, a history was recorded “nil history of recent injury, trauma, falls, heavy lifting”. The Arbitrator said that “it defies belief that the appellant would have omitted to mention the incident on 3 November 2010 referred to in his statement. If the appellant had suffered an acute episode of back pain on 6 November 2010 getting into his private car, as he said in his statement, the Arbitrator “would have expected such a history to be provided to the hospital” (reasons at [63]). She had “considerable doubt in accepting that an incident of such apparent magnitude was not mentioned at the hospital” (reasons at [65]).
The Arbitrator referred to a report of Dr Ali dated 25 November 2011, which recorded a history that “at the time of the incident ‘[the appellant] fainted and had to call his friend who took him to a general practitioner’.” She noted that there was no evidence from a general practitioner or the friend (reasons at [64]).
The Arbitrator noted that the appellant did not rely on the ‘nature and conditions’ of his work with the first respondent, prior to 3 November 2010, as contributing to his condition, only the period from 3 November 2010 to December 2010 as aggravating it. He gave no evidence of “the type of work he performed in that period”, and said that after the incident the first respondent “began to take shifts off me”. The Arbitrator said that, on the evidence, the appellant “performed less work after his claimed injury on 3 November 2010” (reasons at [67]).
The Arbitrator referred to “other matters” that caused her to “doubt the veracity” of the appellant’s claim. The appellant said that he ceased work “on 7 August 2011 or 17 August 2011”. The entry in Dr Houfani’s records on 9 August 2011 indicated that the appellant had been “caught speeding at about that time” and was going to lose his licence. The Arbitrator said that the appellant’s claim that he ceased “because the pain became too much and [he] could not work for six months” was something she simply could not accept (reasons at [70]). The appellant clearly had received some penalty as Dr Houfani’s records in September 2011 recorded “concerns about being unable to pay the fine” (reasons at [71]).
When the appellant saw Dr Ali, a psychiatrist, he denied ever receiving counselling. He claimed that as a result of his back pain he became anxious and depressed. Dr Ali said that, on mental state examination, “there was no evidence of any psychiatric condition other than anxiety and depression”. The history was inconsistent with Dr Houfani’s notes. When Dr Ali examined the appellant on 14 November 2011, the appellant had been “having regular consultations with respect to his schizophrenia throughout the year”. The Arbitrator observed that “Dr Sheikh’s opinion suffers from the same flaws” (reasons at [72]–[75]). The Arbitrator said that the back injury was not mentioned to Dr Houfani until 28 December 2011, and until December 2011, it was not suggested to Dr Houfani that the psychological condition was caused or aggravated by the alleged injury (reasons at [76]).
The Arbitrator referred to the appellant’s statement dated 6 October 2016, and observed that it post-dated the claimed injury by almost six years. She said that she would have expected a more contemporaneous statement, and that the situation “casts considerable doubt on the veracity of the [appellant’s] claim”. The Arbitrator also referred to the appellant’s claim form, saying that there “has been some attempt to alter that document insofar as the time of the accident is concerned” (3 am or 3 pm). She described this as a matter of some concern (reasons at [77]–[78]).
The Arbitrator described Dr Sheikh and Dr Ali as qualified by the appellant’s solicitor, and “somewhat selective in their approach to the claim”. She referred to the failure of their reports to refer to the appellant’s “prior history”, and said that the “obvious flaws” in their opinions made it difficult to accept their evidence (reasons at [79]–[80]). She referred to Dr Qidwai, who she was told had been “recommended” by the appellant’s solicitor. Dr Qidwai’s report dated 16 June 2016 referred to only three consultations, yet it appeared from the invoices that he had seen the appellant more often than this. The Arbitrator discussed Dr Qidwai’s role in the appellant’s treatment, more generally, at [81]–[88] of her reasons.
The Arbitrator referred to a s 74 notice issued by the second respondent (it appears to be that dated 6 July 2012). The author of the notice, Mr Carson, referred to contacting the appellant on 5 December 2011. He said the appellant said that he “advised his employer of the injury at the time but did not take any time off work”. The Arbitrator said that this was inconsistent with the claim form (which described first reporting the injury on 17 August 2011). Mr Carson wrote, in the notice, that he contacted the first respondent on 6 December 2011, and the first respondent said that the “injury was not reported to him”. The Arbitrator said that she had “concerns about not only the veracity of the [appellant’s] statement, but of the entire claim, which is full of inconsistencies throughout”. She was “surprised that the [appellant] did not provide any corroborating lay evidence”. She mentioned the “friend” who took the appellant to a doctor after the incident, and the appellant’s family (reasons at [89]–[93]). The Arbitrator referred to a passage from Chanaa v Zarour [2011] NSWCA 199 at [86], to which she had been referred by the appellant’s counsel (reasons at [94]).
The Arbitrator noted that the appellant bore the onus of proof, and said:
“… it is the numerous inconsistencies demonstrated throughout the evidence that leads me to conclude on the whole of the evidence, that the [appellant’s] claim cannot be accepted.” (reasons at [95])
The Arbitrator referred to the decision of the President, Keating DCJ in Department of Education and Training v Ireland [2008] NSWWCCPD 134. His Honour there quoted from a review of the authorities, by McDougall J (McColl and Bell JJA agreeing) dealing with discharge of the onus of proof, in Nguyen v Cosmopolitan Homes [2008] NSWCA 246 at [44]–[48]. The Arbitrator made the following findings of fact at [98]–[99] of her reasons:
“98. In the present case, having regard to the whole of the evidence, I am not persuaded, on the balance of probabilities, that the event the [appellant] alleged occurred on 3 November 2010 in deed took place, or that the [appellant] injured himself as alleged on that date. Equally, I am not satisfied that the evidence discloses that the ‘nature and conditions’ of his employment with the first respondent from that date until some time in December 2010 caused and/or aggravated, accelerated or exacerbated any condition in his back for the reasons stated above.

99. I have already determined that there was insufficient evidence to conclude that there was any injury within the meaning of section 4 of the 1987 Act as a result of the [appellant’s] employment with the third respondent.”

The Arbitrator also made a formal finding, recorded in the Certificate of Determination, that the first and third respondents were uninsured. This appears to have been erroneous, in that the pleadings (including on the appeal) indicate that the third respondent was insured by Allianz Workers Compensation (NSW) Limited. The confusion may well have stemmed from the fact that the solicitors acting for the second respondent also acted for the third respondent.

HEARING OF THE APPEAL

The appellant sought an oral hearing. The appellant submitted that there was a finding that his evidence was unreliable, and he sought to make oral submissions dealing with that. The appeal was heard on 6 September 2017. Mr Campbell appeared for the appellant, and Mr Dodd for the second and third respondents. The uninsured first respondent, who had been advised of the hearing date, did not appear when the matter was called.
Mr Campbell, in his submissions, stated that he did not seek to submit that the Arbitrator erred in entering an award in favour of the third respondent. It was also common ground that the finding that the third respondent was uninsured should not have been made.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time as found in the provisions of ss 352(3) and 352(4) of the 1998 Act have been met.

THE NATURE OF THE APPEAL

This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(5):
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(7):
“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”

FRESH EVIDENCE

Fresh evidence on appeal is governed by s 352(6) of the 1998 Act. A supplementary statement of the appellant dated 15 November 2016 is attached to the Appeal, marked “Annexure C”. The respondents have, understandably, taken this to represent fresh evidence. They oppose its admission, on the basis that it is not relevant, and there are no submissions in support of its admission as fresh evidence on appeal.
The appellant’s solicitors forwarded an email to the Commission (the respondents’ solicitors were copied in) stating that the supplementary statement is not fresh evidence, but was admitted before the Arbitrator. This is true, it formed part of an Application to Admit Late Documents dated 16 November 2016 (see the reasons at [9]). The Arbitrator, in the absence of an issue on ‘worker’, said “the balance of the statement did not add anything of relevance” (reasons at [19]). The supplementary statement is referred to at [1.3] and [2.1] of the appellant’s submissions. There is no application to rely on fresh evidence on the appeal. The supplementary statement is in evidence.

THE RECUSAL APPLICATION

It is noted at [8] above that matter no 11658/12, involving the same parties, was discontinued by consent at a telephone conference held before me on 20 February 2013, in my then capacity as a Senior Arbitrator. A Direction was issued to the parties on 17 May 2017, shortly after the appeal was allocated, advising them of this. The Direction stated that I had no recollection of my involvement in the prior proceedings. The parties were asked whether they had any objection to my continuing to deal with the appeal. They were advised that if any party sought to make a recusal application, that party should advise the basis, and provide copies of any documentary material or statements that were to be relied on in support.
The appellant’s solicitor advised by email dated 17 May 2017 that the appellant had no objection to me continuing to deal with the appeal. On 24 May 2017 the solicitor for the second and third respondents wrote to the Commission by email. He stated that he was instructed to make a recusal application, raising the following points:
(a)     Although it was accepted that I had no independent recollection of the earlier telephone conference, it might be that on further consideration of the appeal I would recall the case.
(b)     The material relied on by the parties, in matter no 11658/12, included the “contemporaneous evidence” on which the Arbitrator relied, and also the s 74 notices dated 6 January 2012 and 6 July 2012. These “decisions” and supporting material continued to be relied on in the later s 74 notice dated 9 August 2016.
(c)     Dr Qidwai’s report was not part of the material in matter no 11658/12.
(d)     The second and third respondents submit that “it is possible” that, at the earlier telephone conference, I “passed comment on the state of the evidence and/or the readiness of the matter for arbitration”. The solicitor for the second and third respondents submits that it “is likely” that he participated in the earlier telephone conference, although he has “no independent recollection of it”, and does not have a file note of it on his current file. The second and third respondents did not positively assert that “pre-judicial advice” was given, but made the application “out of a desire to ensure that there can be no suggestion subsequently made of pre-judgment”.
The appellant’s solicitors, in an email to the Commission to which the solicitors for the second and third respondents were copied in, opposed the recusal application. The appellant observed that no evidence was attached in support of the application, and that there was “no logical apprehension expressed of any prejudgment”.
A telephone conference which had been allocated, having regard to the recusal application and the possibility of a need for orders relating to substituted service on the first respondent, was vacated by consent on the basis that the Commission and the parties did not regard it as necessary. Mr Dodd, at the hearing of the appeal, advised that his clients maintained the recusal application. He submitted that there was Presidential authority (which was not identified) that an arbitrator could demonstrate bias in furnishing advice to a party on the preparation or readiness of a matter. He did not submit that there was evidence that this had occurred, but submitted that it could have. His clients otherwise did not seek to put anything further in support of the application, beyond the matters raised in the email dated 24 May 2017. He said that the application was put on the basis of apprehended bias.
There is a discussion of a number of the relevant authorities, and application of the principles, in Inghams Enterprises Pty Limited v Belokoski [2017] NSWWCCPD 15 at [32]–[48]. I note the passages referred to at [36]–[37] of that decision. On the basis of the principles there discussed, the grounds for disqualification on the basis of ‘apprehended’ bias are not made out. There is simply no evidence of anything that I did or said that represents a reasonably arguable basis for such a finding. That application is refused.

THE GROUNDS OF APPEAL

References to the Application to Appeal Against Decision of Arbitrator are references to the amended document lodged on 31 January 2017 (the appeal). I should note that affidavits of service have been lodged dealing with service of relevant documents in this appeal, on the first respondent (Mark Norman Smith and Kurt Hippe, both sworn 19 June 2017).
Ultimately, the appellant did not submit there was error in the award in favour of the third respondent. The only finding of the Arbitrator challenged is that that the appellant had not discharged his onus, of proving that the alleged event on 3 November 2010 took place, and that he injured himself on that date. The appellant alleges “error in law, fact or discretion” as follows:
(a)     The Arbitrator gave undue weight to the fact that the incident was not mentioned in the notes of Canterbury Hospital (reasons at [59]–[65]) (Ground No 1).
(b)     The finding that there was an attempt to alter the claim form (reasons at [78]) was not open on the evidence, and should not have caused the Arbitrator “some concern” (Ground No 2).
(c)     The Arbitrator failed to give adequate reasons for not accepting the veracity of the history in the certificate and report of Dr Qidwai (reasons at [81]–[91]) (Ground No 3).
(d)     The Arbitrator gave undue weight to a hearsay statement by the first respondent, referred to in a s 74 notice (dated 6 July 2012), dealing with the report of the incident to the first respondent (Ground No 4). (The appellant’s grounds and submissions refer to the s 74 notice dated 6 July 2012 when dealing with this ground, and I have adopted the same approach. I should note that the same hearsay material also appeared in an earlier s 74 notice issued by the second respondent dated 6 January 2012. In a later s 74 notice dated 9 August 2016 the second respondent stated that it maintained reliance on the two earlier notices).

GROUND NO 1 – CANTERBURY HOSPITAL NOTES

The Arbitrator’s reasons at [63] said:
“What I have difficulty in accepting however is that on admission to the hospital, the [appellant] denied any history ‘of recent injury, trauma, falls, heavy lifting’ which may have accounted for his acute symptoms. Logic would suggest from close scrutiny of those records that he was specifically asked about any recent incident which may have contributed to his condition. Given his statement as to the precise circumstances of his alleged injury on 3 November 2010, it defies belief that he would omit to mention this ‘indisputable frank injury’. Similarly, if he had an acute episode of back pain that day whilst getting into his private car, as he said in his statement, I would have expected such a history to be provided to the hospital.”

Appellant’s Submissions

The appellant submits that the note “nil history of recent injury, trauma, falls, heavy lifting” is recorded in the Emergency Department Discharge Referral, not in the “Presenting Information” in the “Emergency Department Clinical Record”. The history in the “Presenting Information” includes “BIBA [brought in by ambulance] with increasing lumbar back pain over past 2/7”. The notes in the “Presenting Information” do not record the cause of the presenting back pain. The history of the pain having been present for two days is generally consistent with it commencing on 3 November 2010, the alleged date of injury.
Mr Campbell’s submissions at the hearing of the appeal also referred to a history in the “Presenting Information”, “Pt is a taxi driver and today unable to get into car”. He referred to the appellant’s statement dated 15 November 2016 (supplementary statement), where the appellant said at [3] “I used to drive my private car to the taxi base and pick up the car from the base…” The history recorded in “Presenting Information” was submitted to be consistent with the history in the appellant’s statement dated 6 October 2016:
“On 6 November 2010 I decided that I would try to go back to work. Whilst getting into my private car at home my back spasmed again and I felt the same pain as I had felt back at the airport, and I was unable to drive. An ambulance was called and I was taken to Canterbury Hospital.”
Mr Campbell submits that this part of the history, in the hospital notes, was more probative than that in the Emergency Department Discharge Referral, and was consistent with the appellant’s version of what happened. He submits that this corroborative history was not dealt with in the decision, and he contends the Arbitrator overlooked it (T9.13–10.7). He submits the Arbitrator erred in failing to deal with it.

Second Respondent’s Submissions

The second respondent submits the appellant does not identify any error of law or fact under this ground, and its submissions on Ground No 1 “must go to the exercise of the Arbitrator’s discretion”. It submits the interpretation the Arbitrator placed on these hospital notes was that they did not support there having been a specific incident of injury on 3 November 2010. This was different to the argument of the appellant. The appellant effectively seeks a “rehearing” by asking that a different interpretation be placed on these notes.
The second respondent submits that the Arbitrator noted that the “principal issue” was whether an injury was sustained on 3 November 2010. The Arbitrator summarised the hospital notes, which did not have a history of a frank injury, and indeed there was “an apparent denial”. The Arbitrator noted the comments of Mason P in Davis dealing with the records of treating medical practitioners. It was submitted that the Arbitrator “dealt appropriately with that evidence”, contrasting the appellant’s subsequent emphasis on a frank incident on 3 November 2010 with the absence of such a history at Canterbury Hospital. Mr Dodd, in his oral submissions, said the second respondent maintained its position that the Canterbury Hospital notes, in the material under “Presenting Information”, were inconsistent with the history of the appellant suffering spasm getting into his car on 6 November 2010.

Consideration

The Arbitrator’s reasons at [63] make two specific points, about perceived inconsistency between the notes and the appellant’s statement dealing with his injury on 3 November 2010. The first is that the denial, of “recent injury, trauma, falls, heavy lifting”, is inconsistent with the appellant’s allegation of a frank injury on 3 November 2010. The second is that “if he had an acute episode of back pain” on 6 November 2010, as he stated, the Arbitrator “would have expected such a history to be provided to the hospital”.
The appellant’s challenge, to how this evidence was dealt with by the Arbitrator, does not go to the exercise of discretion. It goes to alleged factual error, in the Arbitrator reaching her conclusion about the consistency of the clinical notes, without reference to the history of back pain over the past two days, and the appellant being unable to get into his car on 6 November 2010. When married up with the material in the supplementary statement, that the appellant used his private car to drive to the taxi base, the appellant submits that the notes (at least this part of them) are consistent with the appellant’s statement. This submission is correct. The Arbitrator did not refer to this part of the notes. Her reasons at [63] suggest, contrary to the notes, that a history of an acute episode of back pain on 6 November 2010, whilst getting into his private car, was not given by the appellant at Canterbury Hospital.
This amounted to factual error. The material not referred to was potentially corroborative of the appellant’s evidence in his statement, particularly dealing with the events of 6 November 2010. The appellant submits the history of two days pain “is entirely consistent with something happening on 3 November 2010 and entirely consistent with the history of the incident as contained in the [a]ppellant’s statement.” The Canterbury Hospital notes are obviously not uniformly consistent with the case the appellant makes on ‘injury’. However, that part of the notes, relied on by the appellant in this appeal, was generally consistent, and should have been dealt with. The consequences are discussed under “Disposition of the Appeal” below.

GROUND NO 2 –THE FINDING OF AN ATTEMPT TO ALTER THE CLAIM FORM

The Arbitrator’s reasons at [78] state:
“The [appellant’s] claim form has also caused me some concern. It was completed some 10 months after the claimed injury. It is clear that there has been some attempt to alter that document insofar as the time of the accident is concerned. I am unable to distinguish whether he initially alleged an injury at 3 am or 3 pm, but both times are nominated. If it occurred at 3am then his attendance on Dr Houfani on 3 November 2010 at about 10.20 am reinforces my view as to the veracity of his claim since he failed to report it. If however, the incident occurred at 3 pm there would be no discrepancy. Nevertheless, the fact that the form has clearly been amended is of some concern, particularly when he had already sought the advice of his solicitor.”

Appellant’s Submissions

The appellant submits the claim form (dated 5 September 2011) clearly states that the incident occurred on 3 November 2010 at 3 pm. The appellant acknowledges this is different to 5 pm, the time nominated in his statement. The appellant submits that, if there was an attempt to alter the claim form, this “ought not to have taken that into consideration absent any explanation as to why”. “It does not make sense on any of the evidence that the incident could have happened at 3 am … Taxi drivers do not collect passengers from Sydney Airport at 3 am due to the well-known curfew.” The incident occurring at 3 am would be inconsistent with the appellant seeing Dr Houfani on 3 November 2010 at 10.20 am, and not mentioning any injury. The appellant, in oral submissions on the appeal, said that as he saw Dr Houfani about other concerns, on the morning of 3 November 2010, he was probably not at work in the morning. The appellant’s usual hours were from 3 pm to 3 am.
The appellant submits that if there was an attempt to alter the claim form, the most likely explanation was that it reflected an attempt to fill out the correct time, at the time the form was being completed. The Arbitrator’s expressed concern related to the document being changed after the appellant obtained legal advice. Nothing in the claim form could have caused reasonable concerns.
The appellant submits that the Arbitrator took “into account irrelevant considerations when speculating as to whether the claim form was altered”. He submits that to speculate on whether the incident could have happened at 3 am was not open on the evidence.

Second Respondent’s Submissions

The second respondent submits it is clear the claim form had the time of injury altered. Both “am” and “pm” were circled, and the actual time was written over. The finding that there had been an attempt to alter the document was open to the Arbitrator. In its oral submissions on the appeal, the second respondent submits the time of the injury was important. There were reasons why the claim form might have been amended, after Dr Houfani’s notes turned up. These showed the consultation on the morning of 3 November 2010, at which the injury was not mentioned.
The second respondent refers to the Arbitrator’s analysis of the evidence from Dr Habib, Dr Houfani, Dr Ali and Dr Sheik, together with the appellant’s statement, which was “almost 6 years after the claimed injury”. It submits the Arbitrator’s comments were “in the context of all of the evidence before her, and her “concern” about the claim form did not represent relevant error.

Consideration

The second respondent’s submissions, dealing with the claim form, are in the arbitral transcript at T33.9–38.1. The second respondent’s counsel referred to the record in Dr Houfani’s notes for 3 November 2010. The note showed a consultation at 10.21. The note gave the “Reason for contact” as Obesity – Morbid, Check up, Schizophrenia and NIDDM. The second respondent’s counsel submitted that the claim form was “difficult to read”, and was dated 5 September 2011. He said that the claim form was sent by the appellant’s solicitors, by letter dated 21 September 2011. He submitted “the claim form was completed with the assistance of his attorneys, is my point …”, and was completed at “least with the assistance of his solicitors” (T35.25–34). The following exchange about the contents of the claim form occurred:
“MR DODD: The time is difficult.
ARBITRATOR: But it looks like it’s either 3 am. Well, he circled am and pm.
MR CAMPBELL: I’m not sure whether - - -
ARBITRATOR: 3pm.
MR CAMPBELL: Does this go to any issue that’s pleaded?
ARBITRATOR: No, no, I think - well, Mr Campbell, to be fair I think Mr Dodd’s point is about the contemporaneous evidence and what happened when and how and what time he got to the hospital and when he saw the doctor and things like that. Is that my understanding, Mr Dodd?
MR DODD: Yes, that’s correct.
ARBITRATOR: Yes. So the date and time of the injury certainly seems to be either 3am or 3pm.
MR CAMPBELL: Cover the whole shift.
ARBITRATOR: Anyway, that’s about as far as I think we can take it, Mr Dodd.
MR DODD: Yes, thank you.
ARBITRATOR: I agree it’s not entirely clear but I take your point.” (T37.5–38.1)
The claim form gives the date of injury as “03/11/2010”. In the adjacent box on the form, where time is to be inserted, the numeral “3” is inserted, followed (probably) by “P.M”. The numeral “3” appears to have been written in on top of another numeral, one cannot, from the copy document, say what. The letter “P” also appears to have been written on top of another letter, perhaps “A”, although this is unclear. The letters “AM” and “PM” appear next to that box on its right, both of those options have been circled. The “usual working hours” were given as “3 P.M to 3 A.M”, and the place of injury as “Airport Taxi Pickup”, Airport, Sydney.
At the arbitration hearing, in reply, the appellant’s counsel referred to the appellant’s statement dated 6 October 2016 at page 1.7, where he said that after the incident on 3 November 2010, he drove back to base in Canterbury Road, and telephoned the first respondent. He said that he told the first respondent what had happened, and the first respondent told him not to drive for the rest of the shift, but to go home. It was submitted this was consistent with the shift starting at 3 pm. The appellant submitted that he did not say that he saw his GP after the incident. He saw the GP on the morning of 3 November 2010 before he had started work for that day (T54.5–55.5). The appellant submits that is why the incident was not referred to in the GP consultation at 10.21 that day.
The Arbitrator’s reasons, at [78], acknowledge that whether there is inconsistency involving the claim form, compared with Dr Houfani’s note on 3 November 2010, depends on whether the time of alleged injury was 3 am or 3 pm. Both times are referred to in the claim form. What significance can be attached to this aspect of the claim form, in such circumstances? The second respondent, at the arbitration, made the point that the claim form was furnished under cover of a letter from the appellant’s solicitors, so the appellant would have had the assistance of his solicitors when he completed it. It was not submitted that the material in the claim form, going to the time of injury, was inserted dishonestly. At the conclusion of her discussion, at [78] of the reasons, the Arbitrator said “the fact that the form has clearly been amended is of some concern, particularly when he had already sought the advice of his solicitor”. The nature of the concern was not spelled out, whether it related to some perceived dishonesty on the part of the appellant and/or his solicitor, or simply that the form was not appropriately completed.

The second respondent’s submission regarding the claim form was made more robustly on the appeal, that the claim form would have been filled out “before Dr Houfani’s notes turn up. And, so, there’s every reason why later on the form might be altered or amended …” (T33.20–22). This would make sense only if it were assumed that the time was initially given as 3 am, then altered to 3 pm after the appellant or his solicitors became aware of the consultation with Dr Houfani at 10.21 on 3 November 2010. There was no direct evidence of this, it could only be inferred.
The above submission was not made directly before the Arbitrator. Before the Arbitrator, it was not submitted that the appellant or his solicitors had behaved dishonestly in this regard; it was not submitted that the form had given the time of injury as 3 am, and then been altered to 3 pm in light of Dr Houfani’s records. It was not submitted that an adverse inference as to credit should be drawn based on the claim form.
The Arbitrator’s reasons should be read as a whole: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 444. At [78] of the reasons, dealing with the claim form, the Arbitrator said the amendment of the form was “of some concern” (emphasis added). At [79], the Arbitrator said that she was “also concerned at the lack of evidence of any real treatment” (emphasis added). At [81], she said “Dr Qidwai’s report causes me particular concern” (emphasis added). After further discussing Dr Qidwai’s evidence at [82]–[90], the Arbitrator, at [91]–[92], [95] and [98] said:
“91.   For the reasons stated, I have grave concerns as to the veracity of those certificates.
92.    All these factors add further to my concerns about not only the veracity of the [appellant’s] statement but of the entire claim, which is full of inconsistencies throughout.”
“95.   However, in the present case, it is the numerous inconsistencies demonstrated throughout the evidence that leads me to conclude on the whole of the evidence, that the [appellant’s] claim cannot be accepted.”
“98.   In the present case, having regard to the whole of the evidence, I am not persuaded, on the balance of probabilities, that the event the [appellant] alleged occurred on 3 November 2010 in deed took place, or that the [appellant] injured himself as alleged on that date. Equally, I am not satisfied that the evidence discloses that the ‘nature and conditions’ of his employment with the first respondent from that date until some time in December 2010 caused and/or aggravated, accelerated or exacerbated any condition in his back for the reasons stated above.”
Read in context, the matters said to cause ‘concern’ were matters which led to the Arbitrator rejecting the appellant’s veracity, and ultimately, “the entire claim”. The expression of ‘concern’ at [78], although not clearly expressed as such, was one of a number of such references in the reasons, to matters which led to her rejection of the appellant’s evidence going to injury. In context, there is no other topic to which the ‘concern’ could logically be directed.
In Gardiner v Oxford Art Supplies and Books Pty Ltd [2007] NSWWCCPD 210 Roche DP at [47] said:
“If an Arbitrator is minded to draw adverse inferences against a party on issues of crucial importance and the parties have not had an opportunity to deal with those issues, it is essential that the Arbitrator bring those matters to the parties’ attention so they can deal with them by either making further submissions or calling evidence. A failure to do so will often, depending on the circumstances of the case and the importance of the issue to the final outcome, result in the Arbitrator’s decision being revoked because of a denial of procedural fairness.”
In Bale v Mills [2011] NSWCA 226 at [79], the Court of Appeal said:
“The inference sought was one, but only one, possibility. The matters to which we have already referred at [39] above in discussing what was not put to Mr Schipp reveal that a recognition of error and conscious dishonesty are not the only possible explanations. The inference that Mr Schipp was aware of the error and intentionally deceived his client is a possibility. It is a possibility about which minds might differ as to whether it is sufficiently probable to be a proper inference, that is more probable than not: Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 cited and applied in Holloway v McFeeters [1956] HCA 25; 94 CLR 470 at 480–481 per Williams, Webb and Taylor JJ; and Jones v Dunkel [1959] HCA 8; 101 CLR 298 at 305 per Dixon CJ. In our view that inference cannot be drawn as more probable than not, for the reasons set out below. Most importantly, however, could it be drawn with the requisite confidence in circumstances where that inference and its significance was never raised with Mr Schipp so that he was deprived of any opportunity to respond to it? The answer is plainly, no.”
An inference that the appellant had behaved, in relation to alteration of the claim form, in a fashion which impacted adversely on his credit, was not squarely raised before the Arbitrator. A submission to that effect not having been clearly made, procedural fairness required that the Arbitrator inform the appellant if she was considering such a course. This is consistent with Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 (Stead) at [6]–[7] and [11], and Seltsam Pty Limited v Ghaleb [2005] NSWCA 208; 3 DDCR 1 (Ghaleb) at [78]. It follows that the treatment of such evidence, at [78] of the reasons, constitutes error. The consequences are discussed below under “Disposition of the Appeal”.

GROUND NO 3 – THE EVIDENCE OF DR QIDWAI

This ground argues that the Arbitrator failed to give adequate reasons for not accepting the veracity of the history in the certificates and report of Dr Qidwai.
The Arbitrator, at [45]–[46] of the reasons, quoted at some length from the history set out in Dr Qidwai’s report dated 16 June 2016. This included a history of the alleged injury:
“I saw Mr Chattha on 17 August 2011 when he stated to me that he has been working as a taxi driver for over three years … He started feeling pain in his back on 3 November 2010. He did not remember having any accident other than lifting the bags during the course of his work. He was referred to Dr Habib who treated him with some medications. The pain did not improve instead kept getting worse …”

The brief description of “How the injury occurred”, in the doctor’s certificates, said “Driving taxi and lifting heavy bags”, giving a date of 3 November 2010.
In her reasons at [81] the Arbitrator said:
“Dr Qidwai’s report causes me particular concern. He has claimed that he was the [appellant’s] treating doctor, but his report suggests that he only saw the [appellant] on three occasions. The records of Dr Houfani confirm that it was Dr Habib who treated the [appellant].”
The Arbitrator did not specifically reject the evidence of Dr Qidwai, or the reliability of the doctor’s description of the history he was given.

Appellant’s Submissions

The appellant submits that the Arbitrator “focused” on the fact that Dr Qidwai saw the appellant at the request of his solicitor. She did not accept that Dr Qidwai treated the appellant “in a specialist sense”. It is submitted that the Arbitrator’s comments “contain innuendo of some impropriety on behalf of Dr Qidwai but no reasoning as to why there would be any inaccuracy in the history of the incident as taken by Dr Qidwai was exposed”. The appellant submits there was “an adverse finding as to Dr Qidwai’s credit without questioning or cross-examining him. Further, there was no request to cross-examine the doctor by the respondent.”
The appellant refers to the Registrar’s Guideline for the Practice of the Conciliation/Arbitration Process in the Workers Compensation Commission (Registrar’s Guideline). He submits it would have been consistent with the Registrar’s Guideline (which “outlines the option to cross-examine a witness”) for the Arbitrator “to allow the introduction of oral evidence”. He refers to the rule in Browne v Dunn (1893) 6 R 67 (Browne v Dunn), and submits that a party seeking to discredit or contradict an opponent’s witness must put the matter to the witness in cross examination.
The appellant submits that Dr Qidwai was a qualified surgeon who had carried out surgical procedures in his general practice in Croydon since before Qidwai v Brown [1984] 1 NSWLR 100 (Qidwai). It is submitted that Dr Qidwai was “allowed to effectively combine expert practice with his general practice, allowing access to patients without the need for referral by other general practitioners”. He submits the Arbitrator did not appreciate the exigencies of this practice, and took “a hypercritical and hostile approach”.
The appellant submits that the Arbitrator “seemed to place more stock” on the history in Dr Habib’s report dated 6 November 2010, than that of Dr Qidwai. It is submitted Dr Habib’s recorded history of a “long history of back pain” was not clarified, and should have been given little weight. Dr Houfani’s notes showed a consultation for back pain on 26 July 2010, but not thereafter until after the date of alleged injury, 3 November 2010. Dr Houfani’s “orthopaedic referral” on 8 November 2010 suggests “[s]omething must have happened”. The appellant submits that was the “acute exacerbation of pain occurring on 3 November 2010”.
The appellant argues that “some weight” must be given to the histories recorded by Dr Sheik and Dr Ali, regarding the occurrence of injury on 3 November 2010.
Mr Campbell, in his oral submissions on the appeal, said that Dr Qidwai’s history was consistent with the appellant’s version in his statement. He described the Arbitrator’s criticisms of Dr Qidwai relating to raising invoices as “unfair”. He said the consultations described in Dr Qidwai’s report were the consultations where he issued a certificate. He said the fact that the appellant attended Dr Qidwai at the request of his solicitor did not affect the weight or reliability of Dr Qidwai’s evidence (T19.19–33).
Mr Campbell submitted that the appellant was not successful in giving reliable histories to doctors, he had not given a history of the incident on 3 November 2010 to his general practitioner, Dr Habib or the Hospital. He noted the appellant had “some other health issues”, referring to medical references to “psychological illness and some schizophrenia”. Mr Campbell said that the appellant attended Dr Qidwai after he “presumably told his solicitor his story with a focus to litigation or with a focus to compensation”. Dr Qidwai’s history was taken “after that has occurred”. It is submitted “the fact that Dr Qidwai gets it right is because that’s the first time that Mr Chattha has given an accurate history” (T19.33–20.15). Mr Campbell conceded that there was no evidence of a medical nature to support the proposition of “schizophrenia as a possible explanation for the various historical inconsistencies”, although “it’s prevalent throughout the GP’s notes that he did have that condition” (Appeal T20.17– 21.1).

Second Respondent’s Submissions

The second respondent submits that the weight to be given to expert evidence “is not a discretionary matter”. The second respondent refers to South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421 (Edmonds). The second respondent refers to the judgment of McColl JA in Edmonds as having “discussed the circumstances in which the weight to be applied to medical evidence could be considered on appeal as an error in discretion”. The second respondent quotes from House v The King [1936] HCA 40; 55 CLR 499. The second respondent submits:
“… if relevant evidence ought not to have been admitted or considered probative then an arbitrator’s discretion to admit it or consider it probative is a matter amounting to the exercise of discretion that can be the subject of review.”
The second respondent submits the Arbitrator’s “particular concern” with Dr Qidwai’s evidence arose from a number of factors:
(a)     Dr Qidwai’s status as a treating doctor was inconsistent with the ongoing treating role of Dr Houfani (who had extensive clinical records) and Dr Habib.
(b)     There was inconsistency between Dr Qidwai’s report and the invoices he provided.
(c)     Dr Houfani’s notes did not suggest he referred the appellant to Dr Qidwai, and Dr Houfani continued to treat the appellant.
(d)     There was no evidence of treatment being provided by Dr Qidwai.
(e)     Dr Qidwai’s certificates appeared inconsistent with the contemporaneous clinical records of Dr Houfani.
The Arbitrator dealt with Dr Qidwai’s evidence by cross-referencing it with other evidence, particularly the most contemporaneous evidence. The second respondent takes issue with the appellant’s submission that the decision contained “innuendo of some impropriety on behalf of Dr Qidwai”, and also with the submission that the Arbitrator made an adverse finding as to the doctor’s credit. The finding rather appeared to go to “reliability” or “weight”.
Mr Dodd, making oral submissions on the appeal, submitted that Dr Qidwai’s recorded history, that the appellant “started feeling pain in his back on 3 November 2010” was inconsistent with other evidence, where he said he “used to have niggles in my back”. Mr Dodd submitted that Dr Qidwai’s report inferred that the appellant’s weight gain, and need for gastric stapling, was because of his back pain, although that procedure was “some time before 3 November 2010” (T25.32–26.10). He referred to Dr Qidwai having “apparently [taken] over some treatment of this man which he makes no reference to in his reports” (T26.16–9).

Consideration

The error alleged in Ground No 3 is narrow, the adequacy of the reasons, for the Arbitrator not accepting the veracity of the history recorded by Dr Qidwai. It should be noted that Dr Qidwai’s letterhead indicates that he is a specialist surgeon.
Dr Qidwai’s recorded history, which he took from the appellant regarding the occurrence of injury, is set out at [67] above. The Arbitrator did not, in her reasons, state that she rejected the veracity of Dr Qidwai, in recording the history that he was given. It was not submitted that she should.
The appellant’s argument rather seems to go to the Arbitrator’s failure to accept the version of the appellant’s injury contained in his statement dated 6 October 2016, which was generally consistent with the history recorded by Dr Qidwai. This is made clearer from the oral submissions of Mr Campbell, where he submits that the history taken by Dr Qidwai represented the “first time” the appellant gave an accurate history of his injury (Appeal T20.13–5). The history recorded by Dr Qidwai was that the appellant’s back pain commenced on 3 November 2010, and the only “accident” he could remember was lifting bags. Viewed in this light, the challenge is more against the rejection of the appellant’s evidence about the injury, than about a challenge to a rejection of the accuracy of the history, as recorded by Dr Qidwai.
The Arbitrator dealt with Dr Qidwai’s role in the appellant’s treatment at [81]–[88] of her reasons. She noted that Dr Qidwai said that he was the appellant’s treating doctor, yet the records of Dr Houfani (the treating general practitioner) said that Dr Habib (an orthopaedic surgeon) treated the appellant. The Arbitrator said that Dr Qidwai’s report did not specify actual treatment he had given the appellant, and the appellant’s statement did not identify “specific treatment” from Dr Qidwai.
The Arbitrator noted that, according to Dr Qidwai’s report, the earliest consultation referred to was 17 August 2011. The records of Dr Houfani around that time did not reveal any referral to Dr Qidwai. The Arbitrator said it seemed that Dr Qidwai saw the appellant at the request of the appellant’s solicitor (this is consistent with what the Arbitrator was advised by counsel, that the appellant was recommended to see Dr Qidwai for treatment, by his solicitor, Mr Buttar: T20.10–2 and 44.14–28).
The Arbitrator said that Dr Qidwai’s invoice did not accord with his report. It should be noted that the initial consultation, 17 August 2011, was referred to in both the report and the invoice. The other two consultations referred to in the report, 30 October 2015 and 9 June 2016, were not referred to in the invoice, which pre-dates them (7 July 2014). The invoice refers to 12 other consultations, ranging from 19 August 2011 to 24 May 2013, not referred to in the report. There were certificates issued on three of those dates (19 August 2011, 9 November 2011 and 4 February 2012). A certificate dated 24 May 2012 does not marry up with a date in the invoice. The Arbitrator, at [87] of her reasons, said that if Dr Qidwai did treat the appellant, and in a specialist sense, she would have expected his report to include reference to the various consultations and treatment.
Against the above background, the Arbitrator said that she had “grave concerns as to the veracity” of Dr Qidwai’s certificates, covering the period 7 August 2011 to 20 February 2012.
The appellant’s submissions refer to the decision in Qidwai. I assume for current purposes that that decision involved the same medical practitioner (described as Dr K A Qidwai) who has reported in the current matter. The subject matter went to whether, in carrying out an appendectomy on a patient, in his private consulting rooms, on a “day-stay basis”, the doctor was guilty of professional misconduct. The Court of Appeal set aside a finding to that effect made by the Medical Disciplinary Tribunal.
The appellant submits that, since before that decision, Dr Qidwai has performed surgery in his general practice. The appellant submits the decision in Qidwai held that the doctor was allowed to “effectively combine expert practice with his general practice allowing access to his patients without the need for referral”. The appellant refers to the Arbitrator as making “personal, pejorative and prejudicial remarks against the doctor who has possibly eleven immediate and extended family members practicing medical service providers in Australia”.
The reported decision in Qidwai deals with a narrower issue, it does not appear to deal with the different aspects of Dr Qidwai’s practice. There is no evidence going to the extent to which Dr Qidwai has performed surgery in his practice since the early 1980’s. There is no evidence about the number of Dr Qidwai’s family who are practicing medical service providers. Such matters are of little relevance in any event.
The appellant’s submission, that the consultations mentioned in the report were the consultations where certificates were issued, is incorrect. I was able to identify three consultation dates in the report, and the certificates in evidence were issued on none of these.
The second respondent submits that Dr Qidwai’s report infers that gastric surgery, performed due to the appellant’s weight, resulted from weight gain associated with the back injury. Whilst the order in which matters are set out on the first page of the report could give rise to this impression, the report on its second page says the appellant “has gained some weight in spite of gastric banding in 2009”. That is, there was specific acknowledgment by the doctor that that surgery predated the alleged injury.
The appellant submits that there is “no reasoning as to why there would be any inaccuracy in the history of the incident as taken by Dr Qidwai”. This is because the Arbitrator made no such finding.
In her reasons at [56], the Arbitrator said that she had “grave doubts” as to the veracity of the appellant’s claim. At [57] she said that it was “difficult to accept” that the appellant’s back condition resulted from the incident on 3 November 2010. She said the incident was not mentioned in the records of Canterbury Hospital, Dr Houfani and Dr Habib. Dr Habib’s history referred to “a long history of back pain”.

The way in which the ground is pleaded confuses the veracity of Dr Qidwai, with the acceptability of the appellant’s evidence going to ‘injury’. The Arbitrator made some observations about Dr Qidwai, referred to above, consistent with doubt in the Arbitrator’s mind about what role Dr Qidwai played in the appellant’s treatment. Ultimately the Arbitrator did not reject Dr Qidwai’s evidence, of what the appellant told him by way of history, of the injury. She did not make any specific finding on whether she accepted that evidence.
In her reasons at [98], the Arbitrator made a finding:
“In the present case, having regard to the whole of the evidence, I am not persuaded, on the balance of probabilities, that the event the [appellant] alleged occurred on 3 November 2010 in deed took place, or that the [appellant] injured himself as alleged on that date.”
Although stated to be on “the whole of the evidence”, it is inherent in the above finding that the Arbitrator did not accept the appellant’s evidence, in his statement dated 6 October 2016, of the occurrence of injury on 3 November 2010. In Paric v John Holland (Constructions) Pty Ltd [1985] HCA 58; 59 ALJR 844 the High Court at [9] said (excluding references):
“It is trite law that for an expert medical opinion to be of any value the facts upon which it is based must be proved by admissible evidence. But that does not mean that the facts so proved must correspond with complete precision to the proposition on which the opinion is based. The passages from Wigmore on Evidence cited by Samuels J.A. in the Court of Appeal to the effect that it is a question of fact whether the case supposed is sufficiently like the one under consideration to render the opinion of the expert of any value are in accordance with both principle and common sense.”
See also Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; 52 NSWLR 705 at [64] and Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11; 80 NSWLR 43; 8 DDCR 399 at [82]–[83]. The Arbitrator found that she could not accept the appellant’s evidence that the incident, referred to in the appellant’s statement, in fact took place. It follows that Dr Qidwai’s opinion going to injury was not accepted, as that opinion was based on an acceptance of the appellant’s history regarding the occurrence of injury. This did not constitute a finding going to Dr Qidwai’s credit.
The opinions of Dr Sheikh (who is not a medical practitioner) and Dr Ali suffer from the same difficulty. They are based on histories of an incident on 3 November 2010, which the Arbitrator did not accept had occurred.
The submission that the appellant’s difficulty in giving histories may be associated with his mental health is essentially a factual submission which could and should have been made at first instance. It is inappropriate that it be raised for the first time on appeal: Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68; 59 ALJR 481 at [7]. In any event, it is conceded that it is not supported by medical evidence, and in those circumstances does not carry weight.
The appellant submits the second respondent should have sought to put certain matters to Dr Qidwai, in cross-examination, before an adverse credit finding was made against the doctor, raising the rule in Browne v Dunn. The appellant submits that there was a breach of the rules of procedural fairness, in making an adverse credit finding against Dr Qidwai without him being questioned “on these issues”.
There is no right to cross-examine in the Commission: Aluminium Louvres & Ceilings Pty Ltd v Zheng [2006] NSWCA 34; 4 DDCR 358 (Zheng) at [37]. Typically, in the Commission, evidence is exchanged between the parties in advance of the hearing of a matter. In Quadi v The Reject Shop (Aust) Pty Ltd [2008] NSWWCCPD 3 Roche DP at [56], relying on Daw v Toyworld Pty Ltd[2001] NSWCA 25; 21 NSWCCR 389, said that the rule in Browne v Dunn (1893) 6 R 67 “does not require that matters about which notice has already been given be put in cross-examination”. See also New South Wales Police Force v Winter [2011] NSWCA 330; 10 DDCR 69 (Winter) at [77]–[85]. However, it is appropriate “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”: West v Mead [2003] NSWSC 161; 13 BPR [24,431] at [99], applied in Winter.
The fundamental reason why Dr Qidwai’s opinion was deprived of weight was that the Arbitrator did not accept the appellant’s evidence of sustaining an injury on 3 November 2010. The denial of ‘injury’ was clearly made (with associated reasons) in the second respondent’s s 74 notice dated 6 July 2012. The argument based on the rule in Browne v Dunn does not succeed. It should also be noted that the Registrar’s Guideline, to which the appellant referred, does not have statutory force, it is essentially a guide for practitioners.
For the above reasons, Ground No 3 fails.

GROUND NO 4 – THE HEARSAY STATEMENT IN THE SECTION 74 NOTICE

The appellant’s claim form, dated 5 September 2011, responding to a question “When did you report the injury/condition to your employer?” answered “17/8/11” (it may be 11 August 2011). The appellant, in his statement dated 6 October 2016, described the circumstances of his injury on 3 November 2010, and then said:
“I rested for a while and the passenger took another taxi. I drove my taxi back to the base in Canterbury Road. When I returned to the base I telephoned Mr Malik and told him what happened. He said to me that I should not drive the cab for the rest of the shift but to go home, which I intended to do in any event due to the pain.
The next day I rang Mr Malik telling him that I was still in pain and that I could not come in to work.”
There is a passage in the s 74 notice dated 6 July 2012 which reads:
“• I contacted you by telephone on 5 December 2011 to discuss your claim, and at that time, you indicated:
oThat you advised your employer of the injury at the time but did not take any time off work
oYou changed employer to Shaukat Rana in December 2010 and continued work as a taxi driver until 7 August 2011.
• I contacted Anwar Malik by telephone on 6 December 2011 to discuss your claim and he stated that your injury was not reported to him and that you did not take any time off in relation to an injury that he could recall.”
The Arbitrator’s reasons at [89] read:
“The Section 74 Notice referred to above confirms that the [appellant] was contacted by a Mr Carson from WorkCover on 5 December 2011 and that he advised Mr Carson that he told his employer of his injury at the time but did not take time off work. This is inconsistent with the claim form. Mr Carson further stated that he contacted Mr Malik on 6 December 2011 who stated that ‘your injury was not reported to him …’ which is inconsistent with the [appellant’s] statement and claim form.”

Appellant’s Submissions

The appellant refers to his statement dealing with reporting of the injury, taking one week off work, and reporting the matter again when he returned to work. The appellant submits he was “not challenged in relation to this evidence”. He submits the Arbitrator then relied on a hearsay statement in the s 74 notice. The appellant submits that the Arbitrator relied on hearsay evidence from Mr Carson, in a letter, of what the first respondent told him over the telephone, to the effect that the appellant did not report his injury. The first respondent was both uninsured and (on the appellant’s version) uncooperative, and “went out of his way to ensure that the [appellant] would leave his employment”. There was no statement from the respondents dealing with these matters. The second respondent could have sought to cross-examine the appellant about these matters, but did not. The appellant submits that, to “find an inconsistency based upon unreliable and inadmissible evidence was procedurally unfair”.
Mr Campbell, in his oral submissions, submits that the hearsay evidence in the s 74 notice should have had no weight. He continues:
“It could not be given weight, it was an inconsistent statement which was taken into account by the Arbitrator. We don’t know how much weight she gave it because she doesn’t say, but it vitiates her decision, in my respectful submission, because it was used as an inconsistent statement to discredit the evidence of the worker” (Appeal T14.26–32).

Second Respondent’s Submissions

The second respondent submits that it is unclear, from the reasons at [89], whether the Arbitrator drew any conclusion from the hearsay evidence. She merely noted that it was inconsistent with the appellant’s statement and claim form. The second respondent submits that, in the context of the Arbitrator’s consideration of the evidence overall, the Arbitrator did not place much, if any, emphasis on the hearsay evidence.

Consideration

There was an issue identified in the s 74 notice, regarding whether the appellant made a contemporaneous report of his injury to the first respondent. This was relevant to whether the injury occurred as alleged. There was a signed statement of the appellant, which said that he did so, on the date of injury. The claim form described the injury as having been reported in August 2011. I note that the appellant’s statement said that he ceased work on 7 August 2011 as “the pain became too much to bare”. There was an issue regarding whether other factors were at play at that time, although I do not need to dwell on this further for the purpose of dealing with Ground No 4.
The Arbitrator’s reasons at [89], demonstrate that she was aware of the conflict between the appellant’s statement, his claim form, and what the first respondent was said to have told Mr Carson (from the second respondent). The Arbitrator, earlier in her reasons, referred to a number of inconsistencies in the evidence which she identified, predominantly from the treating doctors’ records. At [89] the Arbitrator specifically identified the first respondent’s statement to Mr Carson, as “inconsistent with the claim form” and “inconsistent with the [appellant’s] statement and claim form”.
The Arbitrator, at [92] of her reasons, referred to her concerns about the veracity of the appellant’s statement, and “the entire claim, which is full of inconsistencies throughout”. At [95] she said the “numerous inconsistencies demonstrated throughout the evidence” led to a conclusion that the appellant’s “claim cannot be accepted”. The conclusions expressed at [92] and [95] do not distinguish between the inconsistencies identified in other passages of the reasons, and those referred to at [89] relating to the hearsay evidence from the first respondent. Although it is not completely clear, when the reasons are read as a whole, they are consistent with the inconsistencies referred to at [89] being among those that led the Arbitrator to reject the claim as a whole. The discussion is framed in similar terms, by reference to inconsistencies. The Arbitrator specifically raised the hearsay passage from the s 74 notice at [89] of her reasons, and did not suggest that she assessed the weight of the passage, having regard to its source.
Section 354(2) of the 1998 Act provides:
“The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.”
Section 354 has been said to modify common law rules of procedural fairness (Inghams Enterprises Pty Limited v Zarb [2003] NSWWCCPD 15 at [25]). Rule 15.2 of the Workers Compensation Commission Rules 2011 provides:
“15.2 Principles of procedure
When informing itself on any matter, the Commission is to bear in mind the following principles:
(1)     evidence should be logical and probative,
(2)     evidence should be relevant to the facts in issue and the issues in dispute,
(3)     evidence based on speculation or unsubstantiated assumptions is unacceptable,
(4)     unqualified opinions are unacceptable.”
In Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282; 13 DDCR 351 Allsop P (McColl JA agreeing) at [2]–[3] said (excluding references):
“2. The relationship between the rules of evidence and hearings by the Commission is made clear by the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the ‘WIM Act’), s 354. The rules of evidence do not apply. Thus, there is no prohibition on hearsay material and opinion evidence. Nevertheless, as the cases discussed by McColl JA show, the Commission is required to draw its conclusions from material that is satisfactory, in the probative sense, in order that it act lawfully and in order that conclusions reached by it are not seen to be capricious, arbitrary or without foundational material.
3. Rule 15.2 of the Workers Compensation Commission Rules 2010, provides that evidence should be logical and probative, be relevant to the facts in issue and the issues in dispute, not be based on speculation or unsubstantiated assumptions, nor should it be in the form of unqualified opinions. The relationship between these requirements and lawful discharge of power at general law based on relevant material need not be explored. It suffices to say that r 15.2 represents a sound approach for the reliable disposition of important cases for individuals. It is not a reintroduction of the rules of evidence. Were the rule to be such a reintroduction, it would confront the inconsistency of the statute (in s 354). Thus, when one is considering the probative value of an expert report, for instance, the question is not whether it is admissible, but whether it provides material upon which the Commission was entitled to act.”
In the same case Basten JA (McColl JA agreeing) at [83] said “Once it is accepted that certain material may be considered by the Commission, the weight to be given to the material is a matter for the Commission itself.”
In Aluminium Louvres & Ceilings Pty Ltd v Zheng [2004] NSWWCCPD 26, Fleming DP at [24] said:
“Where the rules of evidence do not apply, the conduct of proceedings will be a matter to be determined according to principles of fairness, taking into account the nature of the proceedings, the legislative requirements and the demands of the instant case. The Commission may have regard to evidence that would not be admissible in a court in accordance with the rules of evidence. Fairness must guide the weight to be given to this evidence.”
The above passage was approved by the Court of Appeal in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [128] (per McColl JA, Tobias JA agreeing).
In Zheng Bryson JA (Handley JA and Bell J agreeing) at [31] said:
“The ordinary expectation should reasonably be that every material thing which a witness has to say about the facts will appear in the statement of the witness produced before the Arbitration hearing by the person who relies on what a witness has to say.”
The hearsay material from the first respondent, the subject of this ground, was contained in a s 74 notice. Section 74 of the 1998 Act provides for the issue of such a notice “if an insurer disputes liability”. Section 74(2) provides for the contents of the notice, which is to include a statement of the reason the insurer disputes liability, issues relevant to the decision, and such other information as the regulations may prescribe. Section 73 of the 1998 Act and cl 41 of the Workers Compensation Regulation 2016 (the Regulation) provide for the provision by an insurer of copies of certain documents, when an insurer gives notice pursuant to s 74. The provisions do not provide for the inclusion of evidence as part of the text of a s 74 notice. As a matter of practice, it is not unusual for such notices to recite passages of evidence, for example from medical evidence relied on. This is not in substitution for copies of the source document; cl 41 of the Regulation requires that reports falling within its ambit be provided as an attachment to the s 74 notice. One would not anticipate that evidence on which an employer or insurer relied would be recited as part of the text of the notice, and not appear also as a relevant attachment. The inclusion of hearsay material in the s 74 notice, such material not appearing elsewhere in attachments, was unusual and inappropriate.
At the arbitration hearing, neither counsel submitted in relation to the relevant hearsay material in the s 74 notice. The appellant’s counsel, in reply, submitted on the appellant’s evidence going to his reporting of the injury to the first respondent (T54.5–6). It was not indicated, at the arbitration hearing, that the Arbitrator was considering placing reliance on the material in the s 74 notice, dealing with whether the injury was reported to the first respondent.
The s 74 notice was signed by Mr Carson, a case manager with the second respondent. Neither the first respondent nor Mr Carson has given a signed statement that is in evidence. There was no file note in evidence going to what the first respondent told Mr Carson. The relevant passage in the s 74 notice does not purport to be a verbatim account of what was said, it is a summation by Mr Carson of his understanding of a conversation. The first respondent had an interest in the outcome of the claim. In my view the weight to be afforded to the hearsay evidence would be slight. The weight to be afforded to evidence is a matter for the first instance decision maker, unless a finding is so against the weight of the evidence that some error must have been involved: Shellharbour City Council v Rigby [2006] NSWCA 308 per Beazley JA (as her Honour then was), Ipp and Basten JJA agreeing at [144].
In any event, neither party addressed on the hearsay material, and there was not an indication that the Arbitrator proposed relying on such material. In those circumstances, the appellant did not, at the arbitration hearing, address on the weight of that material, or why it should not be accepted. The Arbitrator’s reliance on the hearsay evidence in those circumstances constitutes error of the sort identified in Ghaleb at [78]–[79].
It follows that Ground No 4 is upheld.

DISPOSITION OF THE APPEAL

Grounds Nos 1, 2 and 4 have been upheld. Grounds Nos 2 and 4 raised procedural fairness issues, and it is appropriate that the appeal be upheld, unless the identified errors could not have affected the result: Stead at [11]; Toll Pty Limited v Morrissey [2008] NSWCA 197; 6 DDCR 561 at [10]; Boral Besser Masonry Ltd v Jabarkhill [1999] NSWCA 476; 19 NSWCCR 227 at [12] (per Priestley JA, Mason P agreeing). Discussion associated with the ultimate findings of fact is at [92], [95] and [98] of the Arbitrator’s reasons. At [92], the Arbitrator described “all of these factors” (the identified inconsistencies) as adding to her concerns about the veracity of the appellant’s statement, and “of the entire claim”. At [95], the Arbitrator described “the numerous inconsistencies demonstrated throughout the evidence” as leading her to conclude that the appellant’s claim could not be accepted. Her ultimate finding of fact at [98] of the reasons, that she was not persuaded, on the probabilities, that “the event the [appellant] alleged occurred on 3 November 2010 in deed took place”, was made “on the whole of the evidence”. It is not possible to conclude that the identified errors could not have affected the result. It follows that the appeal in respect of the first and second respondents should be upheld.
At the hearing of the appeal, both parties indicated that, if the appeal succeeded, their preferred course was that the matter be remitted for re-determination by another arbitrator. This course, given the nature of the issues in the case, is appropriate.
I note that the appellant made no submissions, challenging the award in favour of the third respondent, which is confirmed (Appeal T22.14–23.6).

DECISION

The Certificate of Determination dated 7 December 2016 is revoked, as regards the awards in favour of the first and second respondents. The Certificate of Determination is confirmed as regards the award in favour of the third respondent.
The matter, as regards the proceedings by the appellant against the first and second respondents, is remitted for re-determination by another Arbitrator.

Michael Snell
Acting President

26 September 2017