Crowley v Pybar Mining Services Pty Ltd - [2017] NSWWCCPD 10

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Crowley v Pybar Mining Services Pty Ltd [2017] NSWWCCPD 10
APPELLANT:	Benjamin Mathew Crowley
RESPONDENT:	Pybar Mining Services Pty Ltd
INSURER:	QBE Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-3654/16
ARBITRATOR:	Mr G Capel
DATE OF ARBITRATOR’S DECISION:	23 September 2016
DATE OF APPEAL DECISION:	31 March 2017
SUBJECT MATTER OF DECISION:	Extension of time to appeal; alleged errors in fact finding; the drawing of inferences
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:	Toby Tancred Pty Ltd t/as Toby Tancred Solicitor
Respondent:	Gillis Delaney Lawyers
ORDERS MADE ON APPEAL:	1. The appellant’s application to extend the time for making an appeal, pursuant to Pt 16 r 16.2(12) of the Workers Compensation Commission Rules 2011, is refused.

INTRODUCTION

This matter involves a worker, employed in the mining industry, who was injured in a game of rugby league. It was his case that in all of the circumstances he was in the course of his employment when he sustained the injury. The appeal is one brought by the worker against an arbitral decision rejecting that proposition. The Application to Appeal Against Decision of Arbitrator was lodged slightly out of time. After a full consideration of the appeal on its merits, I have concluded that it cannot succeed. For that reason, applying Gallo v Dawson [1990] HCA 30; 93 ALR 479; 64 ALJR 458 (Gallo), an application by the appellant to extend time to appeal is refused.

BACKGROUND

Benjamin Mathew Crowley (the appellant) worked as a loader operator in the employ of Pybar Mining Services Pty Ltd (the respondent) from 2009. His duties were carried out at the Newcrest Cadia Valley Operations Mine, near Orange (the mine). The arrangement was described in an email dated 31 August 2015, from Wayne Bradford, the Safety, Health, Environment & Training Manager with the respondent, which was included in the evidence of both parties:
“PYBAR has a contract to provide labour to Newcrest Mining [Newcrest] at the Cadia Valley Mine in Orange NSW. The workers are embedded into Newcrest crews and are supervised and managed by Newcrest. PYBAR’s sole management representative is Mr Brad Rouse who is the project manager. It is the project manager’s responsibility to maintain client relations, ensure time sheets are collected, listen to employee ‘PYBAR’ issues etc. The project manager does not direct the works.”
A fundraising evening, to raise money for a charity associated with cancer research, was organised for 6 March 2015. There was to be a rugby league game played between sides from two of the work crews at the mine, together with a trivia night at the Emus Rugby Club. One of the managers from Newcrest, at a work meeting about one month prior to 6 March 2015, told those attending the meeting of the event, and invited those interested in playing in the rugby league game to “write your name down”. Those present included employees of both Newcrest and the respondent. The appellant wrote his name down to play. The workers who played were a mixture of employees of both Newcrest and the respondent. The workers worked seven days on, and seven days off. The two work crews involved in the game, including the appellant, were not rostered to work on 6 March 2015.
On 6 March 2015 the appellant played in the game, and when tackled suffered injury to his right leg, including a right tibial plateau fracture. There were a number of surgical procedures. The appellant did not resume duties with the respondent, and his employment was eventually terminated in August 2015. He was essentially off work until March 2016, when he obtained work driving a concrete truck. On 26 August 2015 he made a claim for workers compensation in respect of the injury. The respondent’s insurer declined liability for this claim in a s 74 notice dated 8 September 2015. The bases of the denial included that the appellant had not suffered injury arising out of or in the course of employment, and that employment was not a substantial contributing factor to the injury (ss 4 and 9A of the Workers Compensation Act 1987 (the 1987 Act)).

THE ARBITRAL PROCEEDINGS

The proceedings were commenced by an Application to Resolve a Dispute registered on 14 July 2016. They were listed for arbitration hearing at Orange on 14 September 2016. Ms Grotte of counsel appeared for the appellant, and Mr Baker of counsel for the respondent. The issue to be determined at that stage was described as “the injury dispute”. The Arbitrator indicated that, if the appellant succeeded, the parties would be directed to lodge written submissions dealing with quantum. No oral evidence was called, the matter was dealt with on the written material and counsel addressed.
The Arbitrator reserved his decision. A Certificate of Determination was issued on 23 September 2016, accompanied by 22 pages of reasons (the reasons).
The reasons described the nature of the dispute, and the statements of the appellant, together with those of Wayne Bradford, Brad Rouse, Tony McPaul and Richard Bennett (on which the respondent relied). The Arbitrator reviewed a number of relevant authorities, and summarised the parties’ submissions. The Arbitrator said that the parties’ counsel approached the matter on the basis that the question was whether the injury was in the course of employment, rather than whether it arose out of the employment. This, he said, was consistent with the decisions in Van Haeften v Caltex Oil (Australia) Pty Ltd (1995) 12 NSWCCR 250 (Van Haeften) and Clark v Commissioner of Police [2002] NSWCC 40; (2004) 1 DDCR 193 (Clark). He said that the rugby league game was being played “presumably when he was off duty within an interval between two discrete work shifts” (reasons at [129]).
The Arbitrator described the legal test at [130] of his reasons:
“The authorities of [Humphrey Earl Ltd v] Speechley [[1951] HCA 75; 84 CLR 126], Henderson [v Commissioner of Railways (WA) [1937] HCA 67; 58 CLR 281], Roncevich [v Repatriation Commission [2005] HCA 40; 222 CLR 115, 218 ALR 733; 79 ALJR 1366] and Hatzimanolis [v ANI Corporation Ltd [1992] HCA 21; 173 CLR 473; 106 ALR 611; 66 ALJR 365 (Hatzimanolis)] suggest that for an injury to occur in the course of employment, the worker must be doing something ‘reasonably required, expected or authorised in order to carry out his actual duties’, or, as suggested in [Comcare vPVYW [2013] HCA 41; 250 CLR 246; 303 ALR 1 (PVWY)], and more particularly in Haider [v JP Morgan Holdings Aust Ltd t/as JP Morgan Operations Australia Ltd [2007] NSWCA 158; 4 DDCR 634], the employer has expressly or impliedly ‘induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way’. This requires an analysis of the facts in each individual case.”
The Arbitrator noted that the appellant worked as part of a team comprising employees of both the respondent and Newcrest, supervised by a Newcrest shift foreman. The appellant’s statement referred to Pat McColl of Newcrest, during a pre-start meeting, referring to the rugby league game that “we have organised”, to assist with fundraising, and saying “[i]f anyone wants to be involved, write your name down”. He referred to a submission that this amounted to “encouragement” to participate. He said that “it was encouragement by an employee of Newcrest and not the respondent”. He also said that he did not accept that it was encouragement, but rather “merely reminding the workers that the game was on”. He said that there was “no suggestion in the applicant’s statement that any employee of the respondent was organising the game” (reasons at [131]-[134]).
The Arbitrator referred to other evidence from the appellant that the rugby league game was mentioned by people in authority, including Mr McColl, Mr McPaul or Mr Bennett. The Arbitrator noted that “all of these men were employees of Newcrest”. He referred to a submission on the appellant’s behalf that Mr Rouse (the respondent’s project manager on site) attended meetings and did nothing to oppose the appellant’s attendance. The appellant submitted that this was “implicit authorisation, encouragement or inducement”. The Arbitrator said that Mr Rouse being silent could just as readily be the opposite (reasons at [136]).
Mr Bradford said that the respondent did not pay wages, make any donations, or supply equipment or drinks, in connection with the game. He said the game was not sanctioned by the respondent. He said that no one had sought Mr Rouse’s permission to participate. Mr Rouse said that the game was not organised by Newcrest or the respondent, but by “the workers themselves” (reasons at [140]-[142]). The Arbitrator distinguished the current matter on a factual basis from Van Haeften and Clark, in which the workers succeeded (reasons at [145]-[146]). The Arbitrator at [146]-[147] said:
“…in this matter, there is absolutely no evidence of encouragement, authorisation or inducement by the respondent in any form or fashion.
There is no evidence to show that the respondent expressly or impliedly ‘induced or encouraged’ the applicant ‘to spend that interval or interlude at a particular place or in a particular way’ [to] participate in the rugby league game in accordance with the principles in Haider. There was no benefit to the respondent. The fact that Mr Rouse did not oppose the match does not in my view equate to an implied encouragement, authorisation or inducement.”
The Arbitrator entered an award for the respondent.

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum in s 352(3) of the 1998 Act have been met.

Time to Appeal

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.”
The date of making of the decision was the date when the Commission issued a Certificate of Determination: Pt 16 r 16.2(2) of the Workers Compensation Commission Rules 2011 (the Rules), s 294(1) of the 1998 Act, Dennis v NSW Fire Brigades [2007] NSWWCCPD 165 (Dennis) at [23].
The Certificate of Determination was dated 23 September 2016. Time runs from 24 September 2016: s 36 of the Interpretation Act 1987, Dennis at [23]. The twenty-eighth day was 21 October 2016. The appeal was lodged by email on Friday 21 October 2016 at 5.19 pm.
Part 8, r 8.1(6) of the Rules provides:
“For the purpose of subrule (4)(e), any document that is lodged with or served on the Commission and correspondence directed to the Commission by electronic communication is received by the Commission at the time of entering the information system at the email address set out in or varied under rule 2.2, but if that time is after 5.00pm New South Wales standard time or New South Wales summer time on any day it is taken to have been received on the next day that is not a Saturday, Sunday or public holiday.”
Thus, the appeal is taken to have been lodged on 24 October 2016. It is out of time.
The appellant did not concede that the appeal was out of time, but made submissions “[i]f it is determined that the appeal was lodged out of time”. There is a copy email from the appellant’s solicitor to an employee of the Independent Legal Assistance and Review Service (ILARS), dated 28 September 2016. The solicitor enclosed a copy of the arbitral decision, submitted that there were “arguable grounds to lodge an appeal”, and sought “that you approve funding for an appeal”. There is a copy of a further email from the appellant’s solicitor to ILARS, enclosing a copy of the original email, stating that “20 October is the last day for filing”, and again seeking approval for funding. There is a further copy email from the appellant’s solicitor to ILARS dated 21 October 2016 at 2.17 pm. That email described an attachment as “Crowley – EM to WIRO req funding for an appeal . pdf”. The sequence of documents suggests that the attachment was a copy of the original email dated 28 September 2016 requesting such funding. There is an email from the Workers Compensation Independent Review Officer dated 21 October 2016 at 2.20 pm, advising the appellant’s solicitor that funding was granted for the appeal.
The appellant submits:
“As will be clear, up until 2.20 pm on 21 October 2016 the Appellant was in the invidious position of having received advice that an Appeal had prospects but was without a grant of funding. It is submitted that the delay in the grant of funding provides a full and satisfactory explanation for any lateness in lodgement of the Appeal.”
The appellant deals further with the issue of leave in his submissions in reply. He refers to the provisions of Pt 16 r 16.2(12) of the Rules, and to the decision in Gallo. He submits that if the appeal was lodged out of time, it was by only a matter of minutes, there is no prejudice, the appeal is “strongly arguable” and to “lose the right to appeal would work a substantial and demonstrable injustice”.
The respondent opposes an extension of time. It submits that, funding for the appeal having been approved at 2.20 pm on 21 October 2016, the appellant failed to lodge any material until after the close of business that day. The respondent submits that the circumstances do not constitute ‘exceptional circumstances’. It refers to O’Carroll Constructions Pty Ltd v Burgess [2007] NSWWCCPD 224 (Burgess) in which Roche DP said (at [22(c)] that “…inadvertence or administrative errors by a legal practitioner do not amount to exceptional circumstances”.
The respondent refers to the appellant’s grounds and submissions. The appellant argues that there is appealable error in that the Arbitrator “failed to give sufficient weight to the Appellant’s evidence or prefer it to the evidence of the respondent’s witnesses”. The respondent submits that this is contrary to the reasoning in Pioneer Studios Pty Ltd v Hills [2012] NSWCA 324 (Hills No 1) and Pioneer Studios Pty Ltd v Hills [2015] NSWCA 222 (Hills No 2). The argument appears to be that the appeal lacks “real prospects of success”.
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.” Pt 16 r 16.2(12) of the Rules provides:
“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.”
In Bryce v Department of Corrective Services[2009] NSWCA 188 Allsop P (Beazley and Giles JJA agreeing) dealt with the then equivalent provision in Pt 16 r 16.2(11) of the Rules. His Honour said (at [8]):
“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.”
In Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 Campbell JA (Tobias JA and Handley AJA agreeing) dealt with the phrase ‘exceptional circumstances’, in the Uniform Civil Procedure Rules 2005. His Honour at [66]-[67] said:
“66. In San v Rumble (No 2) (2007) NSWCA 259 at [59]- [69], I gave consideration to the expression ‘exceptional circumstances’ in a different statutory context to the present. Without repeating that discussion in full, I shall state such of the conclusions as seem to me applicable in the construction of rule 31.18(4).
(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).
67. In the context of rule 31.18(4) UCP Rules, any decision about whether there are exceptional circumstances would need to bear in mind the explicit statement of objectives of a court in the management of litigation contained in sections 56-59 Civil Procedure Act 2005.”
I applied the above passage in Rockhard Products Pty Ltd v Economidis [2009] NSWWCCPD 159; 11 DDCR 310, subject to saying that, in the context of the Commission, it is appropriate to have regard to ss 3 and 354 of the 1998 Act, when considering the application of the provision.
The Commission, in dealing with applications to extend time for bringing Presidential appeals, has frequently applied the following passage from the judgment of McHugh J in Gallo at [2] (excluding references):
“The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties. 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. 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. 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. 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.”
The Arbitrator’s decision was given on Friday 23 September 2016. The appellant’s solicitor requested an extension of legal aid to fund a proposed appeal, on Wednesday 28 September 2016, three business days later. He followed up that request by email dated 17 October 2016 (the Monday before time expired on the following Friday). He followed it up again on 21 October 2016, the last date on which an appeal could be lodged within time. It was at that stage that legal aid for the appeal was granted. The appellant’s solicitor was not dilatory in requesting, and following up on, the grant. The appeal was lodged electronically within three hours of when he was advised the grant had been made. The circumstances do not involve “inadvertence or administrative errors by a legal practitioner” (the phrase in Burgess). It was reasonable to defer lodgment of the appeal until a grant was made.

The delay in lodging the appeal is clearly explained, in my view, by the above history. The explanation is adequate. The grant was ultimately made at 2.20 pm, two hours and forty minutes prior to the last time at which the appeal could be lodged within time. In my view that factor is sufficient to constitute ‘exceptional circumstances’.
Factors which support the extension of time are:
(a)     although technically not lodged until 24 October 2016, the appeal was forwarded to the Commission a matter of minutes too late;
(b)     there is no prejudice;
(c)     the delay is adequately explained, and
(d)     ‘exceptional circumstances’ have been found.
The only factor which militates against extending time is the issue of whether the appeal has reasonable prospects of success. If it does not, then to refuse the application to extend time does not constitute an injustice, and this is an important factor against the extension of time. Because the other factors tend to favour an extension, I have given full consideration to the appellant’s grounds of appeal. I have concluded, for reasons that follow, that the appellant cannot succeed in the appeal, on its merits. I accordingly cannot be satisfied that “to refuse the application would constitute an injustice”, as the appeal would not succeed in any event. It follows that the application to extend time should be refused.

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 GROUNDS OF APPEAL

The appeal raises four grounds, although these are essentially variations on a theme. The appellant challenges the Arbitrator’s ultimate finding of fact, being that the injury did not occur in the course of the appellant’s employment with the respondent. The grounds refer to four specific areas of fact finding, in which error is alleged. These are:
(a)     The finding that there was no encouragement by the respondent “for the [appellant] to participate in the game”. The appellant under the first ground raises a specific submission going to Nationwide News Pty Ltd v Naidu; ISS Security Pty Ltd v Naidu [2007] NSWCA 377 (Naidu).
(b)     The finding that there was no evidence that any employee of the respondent was organising the game.
(c)     The finding that there was no evidence that the applicant wished to participate in the game as a bonding experience, that would promote an ‘esprit de corps’. The appellant in his submissions in reply submits that this was a “reasonably available and compelling inference”.
(d)     The finding that Mr Rouse, “in saying nothing”, did not engage in “authorisation, encouragement or inducement” of participation in the game. The appellant, in his submissions in reply, argues that there was a reasonable and compelling inference in this regard.
The Arbitrator, in his reasons at [130] (quoted at [8] above) set out the legal test which was to be applied. The appellant has not, in his submissions, challenged the correctness of that description, although he has submitted “the relevant principle is set out” in Hatzimanolis. The respondent’s submissions agree that “the relevant principle starts with Hatzimanolis”. The respondent disputes a submission by the appellant that Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7; 164 CLR 387 (Maher) is of assistance.
The appellant also submits that the alleged errors are “of the nature as discussed in House v King”. I at this point note that the alleged errors do not involve the exercise by the Arbitrator of a discretionary power. The alleged errors go to whether there was error in primary fact finding, including whether the Arbitrator should have drawn certain inferences. The appeal is not subject to the principles in House v The King [1936] HCA 40; 55 CLR 499: Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [45] (per Heydon JA, Sheller JA and Studdert AJA agreeing).

GROUND NO 1 – EVIDENCE OF ENCOURAGEMENT

The Appellant’s Submissions

At [132]-[133] of the reasons, the Arbitrator said:
“132. According to the applicant’s statement, during a pre-start meeting, Pat McColl of Newcrest mentioned Geoff Hill’s fund raising activities and advised ‘we have organised that a rugby league game’ that was going to assist with fund raising [sic]. Mr McColl stated that ‘If anyone wants to be involved, write your name down.’ Who he meant by ‘we’ is unclear.
133. Ms Grotte submits that this amounted to encouragement, but if this was in fact encouragement, and I am not satisfied that it was, it was encouragement by an employee of Newcrest and not the respondent. In my view, Mr McColl was merely reminding the workers that the game was on the 6 March 2015.”
The appellant submits that in the passage at [133] the Arbitrator “failed to take account of, or alternately failed to give any proper weight”, to:
(a) the evidence of the appellant that Mr Rouse, a senior representative of the respondent, would attend these meetings (appellant’s statement dated 8 June 2016 (appellant’s statement) at [5]), and
(b) the evidence of the appellant going to the tenuous nature of his employment position “given the scaling back of operations at the Newcrest Mine” (appellant’s statement at [10]-[11]).
The appellant additionally submits that for “the reasons cited in authorities such as [Naidu] the conduct of Newcrest should be directly attributed to the conduct of Pybar – per Beasley JA [sic].”

The Respondent’s Submissions

The respondent submits that the appellant’s statement at [5] referred to shift boss meetings, which were asserted to be “Pybar meetings”. Additionally, the statement does not describe any specific meeting. The respondent submits that, if Mr Rouse was aware of a “potential future scale-back in the mine’s operations”, there was no evidence of what effect this would have had on the appellant’s future employment prospects with the respondent.
The respondent refers to Caldwell v JA Neilson Investments Pty Ltd [2007] NSWCA 3 (Caldwell) at [93], per Ipp JA. The Arbitrator’s factual finding was reasonably available on the evidence. It is not susceptible to challenge unless the Arbitrator “failed to use or palpably misused his advantage or made findings inconsistent with incontrovertible facts or made findings contrary to compelling inferences”.
The Arbitrator’s finding, at [133] of his reasons, came after a consideration of the appellant’s evidence, including the matters the Arbitrator was asserted to have “failed to take account of” or “give any proper weight to” – the respondent refers to the reasons at [13] and [17]. The respondent submits the Arbitrator also considered the various witness statements and other documents (reasons at [22]-[39]), the authorities (reasons at [40]-[94]) and the parties’ submissions (reasons at [95]-[123]).
In relation to the appellant’s reliance on Naidu, the respondent submits that authority dealt with multiple issues, the “specific issue before the Arbitrator was not an issue in Naidu”. The respondent also submits that Naidu, and the argument based upon it, were not part of the appellant’s case as run before the Arbitrator, and the appellant “should not be permitted to raise this new issue in the appeal”: Coulton v Holcombe [1986] HCA 33; 162 CLR 1, Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68; 59 ALJR 481 (Metwally).

Consideration

The argument based on the decision in Naidu should be dealt with at the outset.
At the commencement of her submissions at the arbitration hearing, the appellant’s counsel correctly identified the issue as being whether the appellant was in the course of his employment when he suffered injury. She continued (T 3.2-6):
“The authorities, in essence, say that there has to be some evidence of encouragement, or inducement to participate in that game and that’s the game that he was injured in and that encouragement or inducement can be either express or implied.”
The appellant’s counsel, after addressing on factual matters, including what was said at meetings, submitted (T 8.25-32):
“So even though this was something that was organised by other people, we say that that’s compelling evidence that it was authorised, permitted and encouraged by the employer. It’s a small community of mixed employees and Mr Crowley participated because he felt that it was important in him keeping his job, in keeping his employer happy and his employer was trying to keep Newcrest happy so that they would continue to have the contract.”
The appellant’s counsel went on to refer to a meeting, where employees of Newcrest referred to the game, and Mr Rouse (from the respondent) was present. Mr Rouse did not do or say “anything in opposition to the game going ahead”. It was submitted on the appellant’s behalf (T9.34-10.2):
“We say that that’s again compelling evidence that there was acquiescence by Pybar in the participation of its employees in this rugby league game.”
A similar submission was made subsequently (T 14.22-28):
“…Brad Rouse was senior to [the appellant] and he says that Brad Rouse never did anything to – never said anything in opposition to the game going ahead or in opposition to Pybar employees participating in it and that that could be understood as an implicit authorisation, encouragement or inducement and that we would ask you to infer that from the evidence.”
And (T 50.33-5):
“It doesn’t have to be active, it can be implied and it can be inferred from the conduct of the employer…”
And (T 51.33-52.5):
“And in terms of what Mr Rouse could’ve or could not have said, if he wanted to make it clear to the employees that it wasn’t a work related event, when he was there in the meeting hearing all of this stuff he could’ve said, ‘By the way, Pybar is not authorising or encouraging Pybar employees to participate in this event’.”
The case the appellant ran was clear enough. The game had been raised by Newcrest employees, when Mr Rouse (the most senior Pybar employee on site) was present. The respondent’s encouragement or inducement could be inferred from the failure of Mr Rouse to do or say anything in opposition to the respondent’s employees participating in the game.
The appellant’s submissions at [21] say “the Court can have regard to the actions of Newcrest Mining Ltd in inducing or encouraging the [appellant’s] participation in the game”, and refer to “the ratio” in Naidu. At [4] there is a submission that “the conduct of Newcrest should be directly attributed to the conduct of Pybar”. The decision in Naidu is 428 paragraphs long, covers 119 pages, and contains separate judgments by each of the three judges who heard the appeal. It is complex and canvasses a number of issues. A reliance on “the ratio”, with no more specific reference, is unhelpful. Naidu was a case involving the liability, in contract and tort, of an employer and a ‘host’ employer. It was not about liability under the workers compensation legislation.
The appellant may be seeking to refer to the judgment of Beazley JA (as her Honour then was) at [318], where her Honour dealt with the concept of vicarious liability, in a ‘host employer’ arrangement, where a supervisor employed by the host employer effectively became the employer’s supervisor of the plaintiff.
No argument based upon Naidu, that the conduct of Newcrest should be attributed to the respondent, was raised at first instance. It would be wrong to permit it to be raised on appeal. In Metwally the High Court at [7] said:
“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.”
The balance of the appellant’s submissions under this ground argue that the Arbitrator, in making a finding at [133] of the reasons (see [39] above), failed to take account of, or failed to give any proper weight to, to two pieces of evidence. The first such evidence was in the appellant’s statement at [5], where he said that Mr Rouse, together with Mr McColl and Ms Potts, attended shift boss meetings together “from time to time during 2014 and 2015”.
The second such piece of evidence was in the appellant’s statement at [9]-[11]. It was “the tenuous nature of the [appellant’s] employment position given the scaling back of operations at the Newcrest Mine”.
The Arbitrator specifically referred to the evidence about Mr Rouse’s attendance at the meetings, in his reasons at [13]. He summarised the appellant’s submissions on the topic, at [98]-[105]. He referred to the respondent’s submissions on this point at [115] and [119]. The Arbitrator dealt with this topic at [131]-[147]. He gave reasons for not accepting the appellant’s submissions on the issue.
Mr Rouse was the respondent’s sole management representative on the site. The appellant’s statement did not suggest that an employee of the respondent was organising the game. All of the men suggested as having mentioned the game (Messrs McColl, McPaul and Bennett) were employees of Newcrest. Mr Rouse’s failure to say anything about the game, at meetings, could equally amount to a lack of authorisation, encouragement or inducement. Mr McPaul (from Newcrest) said that he had made it known that “Newcrest did not consider the match to be a work related event”. Mr Bennett said the match was not organised by the respondent or Newcrest, but by Joel Fahy, a member of the A crew. Mr Bradford said that no one sought Mr Rouse’s permission to participate. Mr Rouse had not actively encouraged or discouraged participation in the game.
The Arbitrator at [147] of his reasons said there was no evidence that the respondent expressly or impliedly induced or encouraged the appellant to participate in the game. Its failure to oppose the game did not constitute “implied encouragement, authorisation or inducement”.
In Davis v Ryco Hydraulics Pty Ltd [2017] NSWWCCPD 5 the President, Keating DCJ, recently dealt with the principles to be applied in appeals pursuant to s 352 of the 1998 Act, since its amendment effective 1 February 2011. His Honour noted the section no longer provides for a ‘review’, and is now directed to the correction of errors of fact, law or discretion (at [64]). His Honour said (at [65]):
“The appellant’s submissions in support of the alleged grounds of appeal fail to identify any relevant error. Rather the appellant seeks to re-ventilate the merits of the dispute argued before the Arbitrator relying substantially on the same submissions. For that reason alone this appeal must fail, however, I will address the submissions that have been made.”
The submissions in this appeal going to Ground No 1 suffer from a similar vice.
It is quite clear, from the Arbitrator’s reasons, that he neither overlooked nor failed to take account of the evidence about Mr Rouse. That submission cannot be accepted. Rather, the substance of the appellant’s complaint is that the Arbitrator did not draw, from that evidence, the inference that Mr Rouse’s relative silence amounted to encouragement, authorisation or inducement. I will refer below, dealing with Ground No 4, to the question of whether such an inference should have been drawn.
Similarly, the Arbitrator did refer to, and deal with the evidence about, the appellant’s employment situation. The evidence was briefly summarised at [17]-[18] of the reasons, including the appellant’s belief that it would be “good for his employment prospects”. The Arbitrator referred to the appellant’s submissions on this point at [100] and [135]. The Arbitrator dealt with the submission at [145]:
“The applicant thought that he would be looked at in a more favourable light if he participated, but what he felt is not the test.”
The above conclusion is consistent with the passage from Hills No 1, quoted by the Arbitrator at [83] of his reasons. The Arbitrator did not overlook this evidence, and did not fail to give it proper weight.
Ground No 1 must fail.

GROUND NO 2 – NO EVIDENCE AN EMPLOYEE OF THE RESPONDENT ORGANISED THE GAME

In his reasons at [134] the Arbitrator made a finding that there was “no suggestion in the applicant’s statement that any employee of the respondent was organising the game”. The appellant’s submissions refer to his statement at [11], where he speaks of having “heard Pat McColl say that Pybar was involved in organising a game of rugby league”. It submits that a “failure to take proper account of the evidence is an error of law”.
Mr McColl was an employee of Newcrest. The appellant’s statement at [7] indicates that “Geoff Hill who was employed by Newcrest was organising some fundraising activities”. In his statement at [8] the appellant says:
“…about one month before 6 March 2015, Pat McColl addressed this meeting and said words to the effect to all those assembled: ‘As you know Geoff Hill has been doing some fundraising. There is a fundraiser on at Emus Rugby Club in about one month. The date is 6 March. A and B crew are not going to be working that day, it will be a Friday. We have organised a game of rugby league. This is going to assist with the fundraising. If anyone wants to be involved write your name down.’”
The appellant’s statement at [12] described the “first mention by Pat McColl of the game of rugby league”. Other than the reference to “Pybar” in the statement at [11], no other evidence (from either side) suggests that the respondent was an organiser of the game. It appears likely that it is simply an error in the statement. All other evidence is to the contrary.
The appellant’s submissions at T8.7-9 quoted the passage from the statement at [11] (referred to at [66] above). However, the appellant’s case was not put on that basis. The statement at [11] is inconsistent with how the appellant conducted his case at first instance (see the submissions quoted at [48]-[50] above). It was submitted that the game was “organised by other people”. At one point, dealing with “the trivia night and the rugby league game”, it was submitted on the appellant’s behalf (T13.29-14.3):
“And the benefit of it to Pybar is to be participating in something that was being touted by the Newcrest management as something that people should participate in and we say that because of the relationship between Pybar, Pybar would have seen it and you can infer this from the evidence, that Pybar would’ve been wanting to keep Newcrest happy given the commercial arrangement between the two entities.”
The Arbitrator did not deal with the specific piece of evidence at [11] of the appellant’s statement, in circumstances where the appellant did not, at the arbitration hearing, argue that the game had been organised by the respondent. There is no error of law in failing to deal with a matter which was not raised: Brambles Industries Limited v Bell [2010] NSWCA 162; 8 DDCR 111 at [30], Watson v Qantas Airways Limited [2009] NSWCA 322; 7 DDCR 113 at [13]. I mean no criticism of the appellant’s counsel in the above, the way in which she conducted the matter at first instance was appropriate and consistent with the evidence overall.
Ground No 2 must fail.

GROUND NO 3 – EVIDENCE OF BONDING AND ‘ESPRIT DE CORPS’

Ground No 3 submits there is error in the Arbitrator’s finding that there was no evidence that the appellant wished to participate in the game “as part of a bonding experience that would promote an esprit de corps”. The appellant submits error in the Arbitrator’s “criticism and therefore rejection of the evidence for the [appellant’s] failure to use the expression ‘esprit de corps’.” The appellant submits the error involved a failure “to take a principled approach to the task required by the authorities”. He refers to NSW Police Force v Faccin [2015] NSWWCCPD 8 (Faccin) and WorkCover Authority (NSW) v Walling (1998) 16 NSWCCR 527 (Walling).

This is added to in the appellant’s submissions in reply. The appellant submits there was “a reasonably available and compelling inference” that the appellant participated in the game because he saw it as a bonding experience. The submissions in reply also submit that there was “commercial benefit” to the respondent. The event would promote an esprit de corps, and enable teams (with employees from both Newcrest and the respondent) to work efficiently and effectively.
The respondent submits that there was no direct evidence from the appellant that he saw the game as “a bonding experience or promoting an ‘esprit de corps’, and no evidence from him is posited as supporting that proposition”. The respondent submits that the “only mention of that notion appears in the submissions of the Appellant’s counsel (T 3.27)”. It submits that “it is unclear what ‘the principle’ said to be espoused in the two cases referred to is”. It submits that the two decisions (referred to at [72] above) can be distinguished.
The passage referred to by the appellant is at [135] of the reasons:
“The applicant stated that he wrote his name down because he thought that it would be fun and it was good to be involved in a fundraising activity. There is no suggestion in his evidence that he saw this as bonding experience that would promote an ‘esprit de corps’. He thought that he would be seen in a favourable light in the event that there were redundancies.”
The appellant refers to the above passage as a “finding”, and refers to the Arbitrator’s “criticism and therefore rejection of the evidence”. The first sentence of the passage is an accurate summary of the last three lines of the appellant’s statement at [8]. The last sentence of the passage is a reasonable summation of the last sentence of the appellant’s statement at [11]. The appellant refers to the Arbitrator’s rejection of the appellant’s evidence on this topic due to the appellant’s “failure to use the expression ‘esprit de corps’”. The Arbitrator did no such thing. The Arbitrator’s observation, that there was nothing in the appellant’s evidence which suggested that he saw the game as a bonding experience, was accurate. The appellant stated three different reasons for participating; that it would be fun; that it was good to be involved in a fund raising activity, and that it may help him if there were redundancies. There was no direct evidence from the appellant, supporting the proposition that he saw the game as a bonding experience, or something that would promote an ‘esprit de corps’.
Precisely how the Arbitrator’s summation of the evidence on this topic, at [135] of the reasons, ties in with an assertion that he failed to “take a principled approach to the task required by the authorities” (two of which are cited) is not elucidated in the appellant’s submissions.
Faccin, like the current matter, involved an injury occurring in a rugby league game. Deputy President O’Grady, at [70], consistent with the approach adopted in the current matter, described the question on ‘injury’ as requiring “consideration as to whether the [employer] had expressly or impliedly ‘authorised, encouraged or permitted’ [the worker] to spend that interval [between two discrete periods of work] ‘at a particular place or in a particular way’.”
The game, in that instance, was conducted by the NSW Police Rugby League Association, which “conducted rugby league competitions for police officers” (of which the worker was one). It conducted various organised competitions, including at an international level (at [29]). The Association was affiliated with the Police Council of Sport. A Deputy Commissioner of Police (appointed by the Police Commissioner) was the chairman of that Council. An Assistant Commissioner of Police was the Association’s patron (at [30]). There were multiple factual matters which tended to support the proposition that the employer authorised, encouraged or permitted the worker’s participation in the relevant game (see [29]-[36] and [41]-[42]). The Deputy President’s reasoning for finding this to be so is found particularly at [74]-[76].
The Deputy President inferred that the worker’s “participation in the match was relevantly encouraged” (at [75]). The Deputy President, applying Hills No 1 at [76], stated that “the subjective beliefs of a worker are not determinative”, and that he had no regard to the worker’s “belief that he was to be compensated if injured in such a match”. I accept the respondent’s submission that “the factual circumstances [in Faccin] are significantly different”. The decision in Faccin applied accepted principles to the facts in that case, which were quite different to those in the current matter.
The decision in Walling is even more removed, factually and legally, from the current matter. It involved a worker who inhabited temporary accommodation on a farm, supplied by his employer, and the worker was injured whilst riding a trail bike on the farm. Mason P and Beazley JA (Stein JA agreeing) at [20] said:
“In our view Truss CCJ was entitled to conclude that it was no impediment to an award that the activity of trail bike riding was neither induced nor encouraged by the employer. The injury occurred during an interval or interlude in his employment at a place which was contiguous to his place of employment such that there was no real issue but that he was at his place of employment. In our opinion, in this case, that is probably sufficient to find that the injury occurred in the course of employment. In any event, such a finding is supported by the other factors in this case, namely, the dual function of the respondent’s property, its comparatively isolated location, the nature of the worker’s employment there, his extended working hours and the fact that the injury occurred during what seems to have been a flexible lunch break.”
The distinguishing features do not require further comment. The submission that the Arbitrator erred in his consideration of Faccin and Walling, and that this was in some way connected with error on his part in dealing with the appellant’s evidence on “bonding” and “esprit de corps”, is simply fanciful.
For these reasons, and the further reasons given below dealing with the drawing of inferences, Ground No 3 must fail.

GROUND NO 4 – THE EVIDENCE OF MR ROUSE

The Arbitrator at [136], [144] and [147] of his reasons said:
“136. The applicant claimed that Mr McColl mentioned the match at a number of meetings. At the meeting on 26 February 2015, either Mr McPaul or Richard Bennett spoke about the match in similar terms. Significantly, all of these men were employees of Newcrest. The applicant claimed that Brad Rouse was at this meeting and did not do anything to oppose his participation in the match. According to Ms Grotte, this amounted to implicit authorisation, encouragement or inducement. However, given that Mr Rouse said nothing, it could equally amount to a lack of authorisation, encouragement or inducement.”
“144. There is no evidence that the respondent encouraged, authorised or induced the applicant to participate in the rugby league match. Mr Rouse had no interest in the match. It was a social event organised by the workers themselves without any input whatsoever by the respondent.”
“147. There is no evidence to show that the respondent expressly or impliedly ‘induced or encouraged’ the applicant ‘to spend that interval or interlude at a particular place or in a particular way’ [to] participate in the rugby league game’ in accordance with the principles in Haider. There was no benefit to the respondent. The fact that Mr Rouse did not oppose the match does not in my view equate to an implied encouragement, authorisation or inducement.”
The appellant submits that the above passages contain error. The appellant, on appeal, makes the same submission, relevant to [136], that was made at the arbitration hearing (see [49]-[50] above):
“If Mr Rouse having heard others talk about and encourage participation in the game of rugby league wished to make it clear that the Employer was not encouraging participation in the game then that needed to be made expressly clear or clear in some other way. It was insufficient for Mr Rouse to stay silent in the face of express words uttered by others, in his presence.”
The appellant submits, in relation to [144] and [147], that before a ‘no evidence’ finding can be made, “there must truly be no evidence”. He submits that the Arbitrator erred in this regard, in failing to take “any proper account of the Applicant’s evidence in his statement”. The submission is not more specific than this. Reference to whether the state of evidence supports a conclusion that there is no evidence can have a tendency to invert the onus of proof (see Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156D, Goodwin v Commissioner of Police [2012] NSWCA 379 at [54]-[56]). Ultimately, the appellant carried the onus of establishing that the appropriate legal test was satisfied, such that the appellant was in the course of his employment when he suffered injury. The respondent did not carry an onus to disprove it. Failure to take account of relevant evidence could amount to error. However, there was no direct evidence that the respondent induced or encouraged the appellant to participate in the game.
The real issue raised in respect of Grounds No 3 and 4 is that raised in the submissions in reply – whether the Arbitrator erred in not accepting that an inference should be drawn that the respondent, through its silence in the circumstances, had induced or encouraged the appellant’s participation.
I note a submission by the appellant, that failure to “draw a reasonably available and compelling inference favourable to the Appellant is inconsistent with the beneficial nature of the workers compensation legislation”. The general principle is that workers compensation legislation is beneficial legislation (J Odlin Shopfitting International Pty Ltd v Kaljanac (1993) 29 NSWLR 632 at 639G-640A, per Kirby P (Meagher and Crisp JJA agreeing). Such legislation “should be construed so as to give the fullest relief which the fair meaning of its language will allow”: Bull v Attorney-General (NSW) [1913] HCA 60; 17 CLR 370. If there is ambiguity, it “ought not be construed narrowly”: Bird v Commonwealth [1988] HCA 23; (1988) 165 CLR 1 at [7]. However, “[i]f, though, the language of a statute is unambiguous, that a beneficial purpose can be discerned in it does not provide a warrant for the extending of a benefit to an individual whose case falls outside its terms”: Kowalski v Repatriation Commission [2011] FCAFC 43 at [36]. In short, it is a principle of statutory construction, it is not a principle which extends to fact finding. Whether an inference can properly be drawn is dependent upon the general principles, referred to below.
In Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1 (Bradshaw) the High Court at 5 said:
“In questions of this sort where direct proof is not available it is enough if the circumstances appearing in the evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is a mere matter of conjecture (see per Lord Robson, Richard Evans & Co Ltd v Astley [1911] AC 674 at 687). But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise: cf per Lord Loreburn, above, at 678.”
The above passage from Bradshaw was described as “the test to be applied” in Luxton v Vines [1952] HCA 19; 85 CLR 352 per Dixon, Fullagar and Kitto JJ at [8]. In Jones v Dunkel [1959] HCA 8; 101 CLR 298 Dixon CJ, after referring to Bradshaw and Holloway v McFeeters[1956] HCA 25; 94 CLR 470, at [2] said:
“…the law which this passage attempts to explain does not authorise a court to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied.”
Along similar lines, in Flounders v Millar [2007] NSWCA 238 (Flounders) Ipp JA (Handley AJA agreeing) at [35] said:
“It remains necessary for a plaintiff, relying on circumstantial evidence, to prove that the circumstances raise the more probable inference in favour of what is alleged. The circumstances must do more than give rise to conflicting inferences of an equal degree of probability or plausibility. The choice between conflicting inferences must be more than a matter of conjecture. If the court is left to speculate about possibilities as to the cause of the injury, the plaintiff must fail.”
The High Court, in Fuller-Lyons v New South Wales [2015] HCA 31; 89 ALJR 824 at [46], referred to the need for an inference of fact to involve “a definite conclusion of which the trier of fact is affirmatively satisfied, as distinct from merely a possible explanation for the known facts”.
There are two specific inferences which the appellant submits should have been drawn. In relation to Ground No 3, he submits that there was “a reasonably available and compelling inference” that he played in the game “because he saw it as a bonding experience with his work colleagues”. He submits that the work teams comprised employees from both Newcrest and the respondent, and there was commercial benefit to the respondent as an ‘esprit de corps’ would enable the teams to work efficiently and effectively.
The Arbitrator dealt with the evidence the subject of this submission at [135] of his reasons, quoted at [75] above. The submission was not supported by the evidence. The parties’ submissions, and the way in which the Arbitrator dealt with this evidence, is referred to at [72]-[76] above. The appellant’s evidence, in his statement, was not to this effect. It is not submitted by the appellant that there is evidence from other witnesses which supports the drawing of this inference.
Even if the evidence of the appellant had been consistent with drawing this inference, his understanding would not have been determinative. In Hills No 1 Allsop P (Basten and Hoeben JJA agreeing) at [45] said:
“[The worker’s] motives and beliefs may provide some evidential support for a conclusion that she was in fact attending in the course of her employment, but they do not form the relevant test. The course of employment is determined by the employer. The view of Mr Ludbrook would be more significant than that of a new probationary member of staff. However, even his views would not be decisive: the characterisation of the occasion will depend upon an objective assessment of the conduct of persons in authority with the employer, where such authority extends to determining the work hours and conditions of employment of staff.”
The evidence of Mr McPaul (the general manager of the mine and an employee of Newcrest) was that the “game was not organised by anyone in a management position at either Newcrest or Pybar mining that I am aware of”. He said that he “was clear that the football game was not related to work”.
Mr Rouse (the respondent’s project manager at the mine) did not attend the game. In his statement he said:
“28. This match was ultimately held on 6^th March 2015. The game was not organised by the Pybar Mining Company. We did not sponsor it, endorse it or even attend it officially although individuals could have attended as it was open to the public.
29. Newcrest Mining did not organise or sanction the match either. It was purely voluntarily organised by the workers themselves. It was part of A crew versus B crew rivalry.
…
37. Neither Pybar Mining nor Newcrest mining encouraged or instructed workers to participate in this match.”
Mr Bennett, a foreman with Newcrest, said:
“16. The game was organised by Joel Fahy a member of A crew. They had been wanting to have a game between A crew and B crew for at least 4 to 5 months but only got around to arranging it in the weeks before the game ended up happening.
17.    Geoff Hill worked at Cadia Valley mine at the time of the game. Geoff and Clancy Lang who also worked for Newcrest organised joined [sic] in raising funds for the Cancer Council. They raised funds for a trek in Chile I believe, possibly the Inca Mountains.
18.    I organised a trivia night at the Emus Club in Orange. Bret Mackin a supervisor commented to me that the crews were going to have the rugby game. They were organising their own jerseys and everything.
19.    Joel arranged for the game to be played at Endeavour Oval in Orange on the same day but preceding the trivia night.
20.    I estimate there were between 200 and 300 people watching the game on 6^th March 2015. Most did not go to the trivia night afterwards. There was a $5 entry fee into the game.
21.    The game was not organised by the Pybar Mining Company nor Newcrest Mining. The trivia night was mentioned at company meetings for charity.
…
28.    During the weeks before the game being the last week of February 2015 and the first week of March 2015, it is possible I could have spoken at the B crew Meeting at the commencement of their shift.
29.    I would have mentioned the trivia night is on as I was organising it. I could have mentioned the rugby league match as well. I do not recall the precise words I used.
30.    I did not order or demand that anyone go to either event. Nor was there the suggestion that the company wanted or required people to attend.
31.    All staff were quite clear that this was a voluntary organised game of rugby league by the participants themselves. Newcrest Mining neither encouraged nor discouraged it.”
An email from Mr Bradford, the respondent’s Safety, Health, Environment and Training Manager, dated 31 August 2015, is referred to at [2] above. He stated in that document, in part:
“We advise that at no time was this event sanctioned by PYBAR. This event was organised by 2 people raising money for charity with an email sent by via a Newcrest email account announcing the fact that a football match was being arranged…
The only PYBAR management representative (Brad Rouse) on site verbally states that permission to participate in the charity match was not sought or given. His [sic, he] also advises that whilst he had limited knowledge of the event occurring (he was not organising or participating in the event) he certainly did not actively encourage the event.
We refer to the CEO’s executive assistant’s email further states that PYBAR did not donate any funds to the charity. In addition we advise that we did not provide any drinks, sporting garments or pay any wages for the time undertaken in playing football to raise funds for a charity.”
The evidence of the appellant did not support drawing the inference going to bonding and ‘esprit de corps’, referred to under Ground No 3. The appellant’s statement did not nominate these factors as forming even part of his motivation for playing in the game. The lay evidence from other witnesses did not support the inference. Whether such factors formed any part of the reasons for why the game was played, or why the appellant played in it, is conjecture. There could not, on the evidence, be “a definite conclusion of which the trier of fact is affirmatively satisfied” to that effect. The Arbitrator did not err in failing to draw such an inference. The Arbitrator at [135] of his reasons gave reasons for rejecting this submission, effectively that it was not supported by the appellant’s evidence.
In PVYW the plurality, after reviewing the authorities including Hatzimanolis, at [61] concluded:
“The two circumstances identified by Hatzimanolis were where an injury was suffered by an employee whilst engaged in an activity in which the employer had induced or encouraged the employee to engage; or where an injury was suffered at and by reference to a place where the employer had induced or encouraged the employee to be. An injury sustained in these circumstances may be regarded as sustained in the course of the employee's employment.”

The appellant, in respect of Ground No 4, submits it should be inferred that Mr Rouse, by saying nothing, impliedly induced or encouraged the appellant to play in the game of rugby league football in which he was injured. On the appellant’s statement, employees of Newcrest mentioned the football game as follows:
(a)     Mr McColl, at a “Pre-Start meeting” in about February 2015 said there was “a fundraiser” on 6 March 2015, “[w]e have organised a game of rugby league”, it is “to assist with the fundraising”, “[i]f anyone wants to be involved write your name down”.
(b)     Mr McColl said “that Pybar was involved in organising a game of rugby league”. For reasons given above dealing with Ground No 2, this was probably erroneous, and was not the case run by the appellant.
(c)     On “a few occasions” Mr McColl, probably at Pre-Start meetings, said “Don’t forget about the game of rugby league at Emus on 6 March”.
(d)     On 26 February 2015, at a “State of the Nation meeting”, either Mr McPaul or Mr Bennett said words to the effect:
“Make sure everyone remembers the game of rugby league next Friday. It is at Emus and A and B crew are playing. It is to raise money for the fundraiser that Geoff Hill is organising.”
Of these occasions, Mr Rouse was present at the meeting on 26 February 2015, according to the appellant’s statement. What was said at that meeting did not, on its face, relate to inducing or encouraging employees to play in the game. It would be consistent with simply reminding people that they could attend as spectators, as it was “to raise money”. The occasion, on the appellant’s statement, when there was an opportunity for workers to put their names down to play (which the appellant did) was at the Pre-Start meeting referred to at (a) above. It is unclear, on the appellant’s statement, whether Mr Rouse was at that meeting. The appellant does not say that he was. What was said at that meeting, by Mr McColl, does not necessarily amount to inducement or encouragement to play in the game – “[i]f anyone wants to be involved write your name down”.
The other lay evidence, set out at [96]-[99] above, does not suggest inducement or encouragement by those in authority with Newcrest, or Mr Rouse, that people play in the game.
I should note that the appellant refers to a decision of the High Court in Maher as being relevant to the concept of “implied inducement”. Maher dealt with the doctrines of equitable and promissory estoppel, in the context of a dispute about a lease of land, where the exchange of parts to create a binding agreement had not occurred. I accept the respondent’s submission that it is not of assistance in the current matter.
The Arbitrator gave reasons for not accepting an argument that he should infer, from the silence of Mr Rouse, that the respondent impliedly induced or encouraged the appellant to play in the game. He said, at [136] of his reasons, that Mr Rouse’s silence “could equally amount to a lack of authorisation, encouragement or inducement”. As was said in Flounders (referred to at [91] above), “[t]he choice between conflicting inferences must be more than a matter of conjecture”. The Arbitrator did not, in my view, err in not drawing the inference for which the appellant argues in Ground No 4. The evidence overall did not support the inference.
Ground No 4 must fail.

DECISION

The appellant’s application to extend the time for making an appeal, pursuant to Pt 16 r 16.2(12) of the Workers Compensation Commission Rules 2011, is refused.

Michael Snell
Deputy President

31 March 2017