Cullen v Woodside Energy Ltd - [2021] WADC 56

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   CULLEN -v- WOODSIDE ENERGY LTD [2021] WADC 56
CORAM:   STAVRIANOU DCJ
HEARD:   22 FEBRUARY & 1 JUNE 2021
DELIVERED          :   10 JUNE 2021
FILE NO/S:   APP 46 of 2020
BETWEEN:   GARRY FRANCIS CULLEN
Appellant
AND
WOODSIDE ENERGY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :   WORKERS' COMPENSATION ARBITRATION SERVICE (WA)
Coram:   MR M WALLBRIDGE
File Number            :   A53195

Catchwords:

Appeal and cross-appeal - Workers' compensation - Section 5 Workers' Compensation and Injury Management Act 1981 - Definition of 'injury' - Whether denial of natural justice established - Turns on own facts

Legislation:

Workers' Compensation and Injury Management Act 1981 (WA)

Result:

Leave to appeal
Appeal allowed
The application for arbitration dated 22 June 2018 be remitted to the Workers' Compensation Arbitration Service (WA), differently constituted for hearing
Cross-appeal dismissed

Representation:

Counsel:

Appellant	:	Mr N F Morrissey
Respondent	:	Mr D R Clyne

Solicitors:

Appellant	:	Slater & Gordon
Respondent	:	Jackson McDonald

Case(s) referred to in decision(s):

Apache Northwest Pty Ltd v Agostini [No 2] [2009] WASCA 231
Audino v WA Country Health Service - Wheatbelt [2013] WADC 46
Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571, 589
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576
FAI General Insurance Co Ltd (De‑Registered) v Goulding [2004] WASCA 167
Housing Industry Association Limited v Murten [2004] WASCA 139
Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149
National Companies & Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212
Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152

STAVRIANOU DCJ:

Introduction

By application dated 22 June 2018 the appellant, Garry Francis Cullen, claimed from his employer the respondent Woodside Energy Limited (Woodside) weekly payments of workers' compensation and medical expenses.
Mr Cullen alleged that he had contracted a disease, in the course of his employment, particularised as major depression.
Woodside disputed Mr Cullen's claim and the application proceeded to arbitration pursuant to the Workers' Compensation and Injury Management Act 1981 (WA) (the Act). The arbitrator dismissed the claim on the basis that he was not satisfied that Mr Cullen suffered a compensable injury as defined in the Act.
Mr Cullen now appeals the decision. His principal submission is that there was a denial of natural justice.
Woodside cross-appeals on the basis that Mr Cullen's condition arose wholly or predominantly from an excluded matter, namely discipline, pursuant to s 5(4) of the Act and therefore there was no entitlement to compensation.

The factual background

The following background is essentially a summary of what is set out in the Arbitrator's reasons and not challenged by the appeal or cross-appeal.
Mr Cullen had been employed for a number of years by Woodside as an instrument and electrical technician.
Woodside utilised a performance management process in relation to all of its employees. The process included consultations between managers and employees and required each employee be given one of five overall performance ratings ranging from outstanding to unsatisfactory. The second lowest rating was Developing/Improvement Required (D/IR). The process concluded with the distribution of a lump sum cash bonus to all employees based on their final rating.
Mr Cullen's claim was that he contracted an injury in November 2016 following a conversation he had with Mr Garry Ridley, a Woodside manager in which he was told his proposed rating was to be D/IR.
On 14 March 2017 Mr Cullen's D/IR rating was confirmed. It was Mr Cullen's evidence in the arbitration that he felt 'absolutely devastated by the confirmation of his final rating'.
On 6 April 2017 Mr Cullen had a meeting with Mr Andy Grosse a senior manager with Woodside concerning an appeal in relation to the rating given to him. Mr Cullen gave evidence that Mr Grosse told him there was no avenue of appeal.
On 7 April 2017, Mr Cullen sent an email to Mr Grosse in which he requested escalation of his appeal to senior management. At around this time Mr Cullen went on unrelated personal leave until the 16 June 2017.
On 31 July 2017, Mr Cullen attended Woodside's Perth office. Mr Cullen gave evidence that upon entering the foyer, 'his stress and anxiety became worse, his heart raced, he struggled to breathe, and he shook all over'. He left the office and went to the Joondalup Health Campus Emergency Department.
On 21 June 2017 Mr Cullen attended upon a general practitioner who diagnosed him with depression and stress.
In his written statement dated 18 May 2018 Mr Cullen asserts that he is 'definitely not fit for work'.
On 18 May 2018 Mr Cullen's employment with Woodside was terminated.

The arbitration hearing

It is necessary to examine the documents before the arbitrator and the evidence adduced at the hearing. In Mr Cullen's application the circumstances of the employment which contributed to the contraction of the injury are identified as follows:
The applicant alleges he developed the condition as a result of the perception of the flawed manner that his lowe (sic) performance rating was arrived at. Furthermore the applicant was told there would be no avenue for appeal.
The issues in dispute are stated as follows:
The Respondent submits that its decision to give the Applicant 'needs improvement/development' performance rating, amounted to discipline and that being given, said rating was the whole or predominant cause of the injury and therefore is not compensable by virtue of Section 5(4) of the act.
Woodside's reply reads:
1.The respondent disputes the applicant is entitled to compensation for total incapacity from 16 November 2016 and continuing together with payment of medical and other statutory expenses on the basis that his alleged stress condition was sustained wholly or predominantly as a result of the applicant being given a 'Needs Improvement/Development' performance rating. The respondent says that its decision to give the applicant a 'Needs Improvement/Development' performance rating amounted to discipline.
2.The respondent disputes the applicant has been incapacitated for work and it puts the applicant to proof in that regard.
3.The applicant reserves the right to raise additional issues upon receipt of further information and documents.
Woodside filed written opening submissions which repeated reliance upon the assertion that Mr Cullen's condition arose wholly or predominantly from a matter in s 5(4) of the Act or the expectation of a matter. Further Woodside submitted that it did not act harshly and unreasonably towards Mr Cullen. It also made a submission in the alternative that the 'factual foundation underlying the contraction of the injury is not supported by objectively proven facts'.
The hearing before the arbitrator proceeded very much on the basis of two primary issues. First what was discussed in the conversation between Mr Ridley and Mr Cullen. Secondly whether Woodside's performance rating process constituted discipline for the purpose of s 5(4) of the Act. That that is the case is clear from an examination of the application and reply, the witness statements, the opening and closing written submissions and the transcript of the hearing.
Mr Cullen's evidence-in-chief was adduced by written statements supplemented by oral evidence. In his first statement dated 18 May 2018 he notes that in the November 2016 conversation Mr Ridley told him that he would be the group's low rater nomination. He also said that he felt it was unfair that he had been given that particular nomination. Mr Cullen made three supplementary statements which were partly responsive to Woodside's proposed evidence, dealt with Woodside's performance management process and his contention that Woodside's conduct had been unreasonable and harsh. There was no mention in the statements of any benefit attached to a particular rating or of an expectation of the loss of or a loss of benefit.
Mr Cullen gave evidence that following what he described as the appeal meeting in April 2017 he could 'feel myself getting all anxious and stressed'. He stated that he was 'shaking and all tense, sweating, then my heart felt it was missing beats and racing'. He reported this to an on-site Medic who performed an ECG. Mr Cullen was on leave from 23 April 2017 until 16 June 2017. Mr Cullen gave evidence that between 16 June 2017 and the 23 June 2017 he was stressed and not sleeping.
Mr Cullen gave evidence that he had contracted his disease as a result of his sense of injustice at being told by Mr Ridley of his D/IR rating. Mr Cullen's evidence was that he felt helpless and frustrated and this had caused him stress and depression. The arbitrator noted in his reasons that Mr Cullen's complaints about being treated unfairly arose as a result of his reaction to being told of the proposed rating.
In cross-examination Mr Cullen was very briefly questioned in relation to benefits as follows:
MR LUSTIG: What are the consequences of receiving a rating of 'needs development or improvement'? ... You lose a fairly small percentage of your bonus.
Performance-based pay? ... Yes. I forget what the figure is. I think it's 3 per cent. I'm not sure now.
And that was of concern to you? ... The concern to me was the injustice and how I'd be betrayed and how the process wasn't followed.
There then followed questions in relation to Mr Cullen's proposed Transition to Retirement.
Mr Cullen gave very limited evidence as to any expectation of loss of a benefit to be received or loss of a benefit. There was no proposition put to him that any disease he had arose as a result of an expectation of loss of a benefit or loss of a benefit. He was not cross‑examined on the basis that any disease he had suffered was caused by an expectation of loss of a benefit or loss of a benefit.
Each party adduced evidence from a psychiatrist at the hearing. However the evidence adduced did not support a finding that Mr Cullen's disease was caused by an expectation of loss of a benefit or loss of a benefit. Mr Cullen relied upon the opinion of Dr Frederick Ng who wrote a report dated 12 April 2018 in which he opined:
His pre-existing anxiety about working with high-voltage did not cause his current psychiatric difficulties but may have somewhat predisposed him to it. The injustice regarding and the alleged flawed manner that his low performance rating was arrived at was the most significant contributing factor in materially precipitating his current psychiatric difficulties which had then been somewhat exacerbated by his further allegation that he was told that there was no avenue for appeal with respect to his low performance rating …
Dr Victor Cheng gave evidence on behalf of Woodside and opined that Mr Cullen's employment significantly contributed to his psychological condition. He further opined that he appeared to have had stress arising from his negative performance appraisals and the subsequent concern that he would have his employment terminated as a result of this. He also noted that Mr Cullen 'reported stress regarding the process of being unable to successfully appeal the rating determination and then ultimately having his employment terminated.'
Mr Ridley's evidence was that he could not recall telling Mr Cullen 'on or about 16 November 2016 that he would be in the group "low rating" nomination'.
Each party filed written closing submissions which were supplemented orally. The arbitrator observed in the course of oral submissions that it seemed that Woodside's closing submissions 'are now not so much focused on necessarily excluded matters, but rather that the objective facts that I may find as a result of the evidence that we heard don't actually support those facts that Mr Cullen seeks that I rely on – his subjective reaction doesn't warrant a finding of the contraction of a disease ...'. He subsequently noted that 'in relation to the closing submissions that perhaps the section 5(4) exclusions don't take as big a role in this case as perhaps first pleaded.'
The applicability of s 5(4) of the Act was raised by the arbitrator with Woodside's counsel in the course of oral submissions. The following exchange occurred:
ARBITRATOR: The only thing I was thinking, so in terms of section 5(4), I mean you're not abandoning that, are you, or are you still want me to consider whether these are excluded matters.
MR LUSTIG: I think it's difficult for us to urge that as a primary submission. It's in our opening submissions, but ---
In the course of an exchange with counsel towards the end of Mr Cullen's reply submissions the arbitrator referred to s 5(4)(b) of the Act and observed that the focus had been on dismissal or discipline. The exchange between counsel and the arbitrator continued as follows:
ARBITRATOR: --- there are those other matters that I did raise earlier as well, in relation to that subparagraph B where it talks about - and in this case, there was some cross‑examination about this transition to retirement, and being knocked back when he went back to work, and that - you know, that he in his own statement, I think he does draw attention to the fact that the ramification of the low rating would mean that it would affect his bonuses, so - which I took to mean that - could be interpreted as a benefit, he's lost a benefit he had.
MR MORRISSEY: If I could just say - and thank you for raising that, because that is something I wanted to address. The point with that being that even if there is some evidence that that occurred, there is no evidence that that is what made him ill, and certainly no evidence that that was the whole or predominant cause of what made him become ill, so I don't think it goes anywhere in the context of this application.
ARBITRATOR: All right.
MR MORRISSEY: It wouldn't be credible for the applicant to say that that wasn't a side effect of this rating, because it's established on the documents that are before you.
ARBITRATOR: And I understand that to be that the core argument is, well, no, it's this sense of injustice at the way he was dealt with, and that I can find on the facts as established that that was the case.
MR MORRISSEY: Yes.
ARBITRATOR: All right. So ---
MR LUSTIG: Sir, could I ---
ARBITRATOR: Yes ---
MR LUSTIG: I just want to - you've touched on that just at the very end, one thing to remember here is that what we do know is that the two core grievances were the sense of injustice and the failure of the appeals process, or the lack of it, and the perception of the applicant, and we say that that's not made out. My friend is, in a way, trying to - he used the word insult and grievance I think in - to try and lower the bar in relation to the contraction of the disease, or the events that gave rise to the contraction of the disease. That's not a legal test.
You have to look at the disease as found by the doctors, and the information that was given by the applicant to the doctors when coming to effectively the same diagnosis, and it is the sense of injustice that he was - there was a lack of equity and fairness in the performance management process. So it's not a question of - and I just urge - I bring the point up, because using the concepts of insult and grievance lowers the bar, which I say is not the right way to look at the legal test.
MR MORRISSEY: If I can just respond to that, reading from paragraph 16 of his Honour Judge McCann's reasons in Asmitia, he says, "A stress claim is compensable if it is caused by a worker's subjective reaction," so it's a very broad and inclusive test ---
ARBITRATOR: But I think Mr Lustig is just making the point that the diagnosis of the doctors is on the basis of what they understood Mr Cullen to be telling him. So his subjective reaction I need to bear in mind, and the diagnosis I need to bear - he's just urging caution from the respondent's point of view. That's my understanding, that I don't lower the bar or - you know, I'm aware of what the diagnosis of the doctors, the information they were given. He's just pointing out that that's an - like, this sense of injustice, which I mean, an insult - I mean, he's an experienced man, he's in his late 60s, I mean, insult, injustice, I mean ---
The arbitrator reserved his decision on the 6 September 2019 and ultimately delivered his reasons on the 26 June 2020.

The arbitrator's reasons for decision

The arbitrator found in relation to the conversations between Mr Ripley and Mr Cullen that it was more likely than not that Mr Ridley did tell Mr Cullen what his proposed performance rating for 2016 would be at the meeting on 23 November 2016, and told him again at the subsequent review meeting on 6 December 2016, after Mr Cullen had uploaded self‑assessment and multi‑source feedbacks.
Having made the factual finding as to the conversation the arbitrator made further findings which may be summarised as follows:
1.Mr Cullen did contract a disease being an adjustment disorder with anxiety and depressed mood at the time of being told he would receive a proposed overall performance rating of D/IR by Mr Ridley at his end of year performance review. The disease was contracted in the course of his employment. Mr Cullen's disease arose as a 'direct result of being subject to Woodside's employee performance management process'.
2.Given his ultimate finding the arbitrator did not consider it necessary to resolve the conflict between the two medical experts as to whether Mr Cullen's disease 'evolved and deepened into a major depressive disorder' as opined by Dr Ng.
3.Mr Cullen's employment with Woodside contributed and contributed to a significant degree to the contraction of his disease.
4.Woodside's granting of overall performance ratings to employees and the payment of a cash bonus on the basis of an employee's overall performance rating was an integral part of its performance management process, such that the award or granting of a higher or lower performance rating was a matter in respect of 'any other benefit in relation to employment' for the purposes of s 5(4) of the Act.
5.Mr Cullen's disease was caused by stress.
6.The disease which Mr Cullen contracted was wholly or predominantly caused by a matter as defined in s 5(4) of the Act.
7.The stress related disease wholly or predominantly arose from Mr Cullen's expectation of an excluded matter in relation to his employment or an expectation of a decision by his employer about an excluded matter in relation to the employment. Because Mr Cullen's complaints about being treated unfairly arose as a reaction to being told of his overall performance rating the 'stronger, main or leading element' of Mr Cullen's overall concern which caused his stress related disease was being told of his performance rating.
8.The arbitrator found that if he was wrong in relation to an expectation, then the stress arose from Mr Ridley saying to Mr Cullen that he would receive a proposed overall performance rating of D/IR and the stress related disease still wholly or predominantly arose from an excluded matter.
9.The decision made by Woodside was not harsh and unreasonable. Mr Cullen had not proven that the conduct was unreasonable and harsh. The arbitrator accepted that it was part of Woodside's performance management process that an employee should not be told their final overall performance rating before confirmation of that rating and calibration.
10.Because of the finding that Mr Cullen had not proven he had suffered a compensable injury pursuant to the Act it was unnecessary to consider the issue of incapacity.
11.Woodside's performance management process did not constitute discipline for the purposes of s 5(4) of the Act.

Amended grounds of appeal

The amended grounds of appeal filed the 2 June 2021 read:
1.The Learned Arbitrator erred in finding that the Appellant had contracted a psychiatric disease wholly or predominantly as a result of an expectation or a loss of an excluded matter, namely a benefit, when there was no evidence to support such conclusion.
2.The Learned Arbitrator denied the Appellant procedural fairness in determining that his psychiatric disease was wholly or predominantly caused by an expectation or a loss of a benefit for the purposes of s 5(4) of the Act which precluded a claim for compensation in circumstances where the Appellant was not given opportunity to answer such case:
Particulars
(a)The Appellant did not give evidence which would support a conclusion that his psychiatric illness was caused by an expectation or a loss of a benefit;
(b)The Appellant was not cross-examined to the effect that his psychiatric illness was caused by an expectation or a loss of a benefit;
(c)The Respondent through its counsel did not make any submission that the Appellant's psychiatric illness was caused by an expectation or a loss of a benefit;
(d)There was no psychiatric evidence adduced at the hearing which would support the conclusion that the Appellant's psychiatric illness was caused by an expectation or a loss of a benefit;
(e)The Learned Arbitrator did not raise with the parties his view that the Appellant's psychiatric illness might have been caused by an expectation or a loss of a benefit such that the parties were unable to provide a response to this conclusion.
3. The Learned Arbitrator erred in failing to consider whether the Appellant had sustained an injury pursuant to limb (d) of the definition of injury contained within s 5 of the Act.
4. Having found that the Appellant contracted a psychiatric disease on 23 November 2016 when he was told by his supervisor, Mr Ridley, that he would be his group's low rater nomination, the Learned Arbitrator erred in finding that the Appellant's psychiatric disease was caused by an expectation of a matter.
5. Having found that the Respondent through its employee, Mr Ridley, had told the Appellant of his performance rating nomination before the Respondent's prescribed performance review process had been completed, which conduct was in direct breach of the Respondent's own guidelines, the Learned Arbitrator erred in not finding that the Respondent's conduct was unreasonable and harsh for the purposes of the definition of injury contained within s 5 of the Act.

The cross-appeal

Woodside has filed a cross-appeal asserting that the learned arbitrator was wrong in law in finding that the respondent's performance management process as it applied to the appellant in 2016, did not amount to discipline for the purposes of s 5(4) of the Act.

General principles on an application for leave to appeal

I summarised the relevant principles in Audino v WA Country Health Service - Wheatbelt [2013] WADC 46 (5 April 2013) as follows:
20Section 247 of the Act enables a party to appeal an arbitrator's decision to the District Court. Leave to appeal is required and a court is not to grant leave unless a question of law is involved.
21An appeal 'involves' a question of law if the court, tribunal or statutory decision-maker whose decision is under appeal has made an error of law, or an error of mixed law and fact: BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [3]; Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17 [20].
22A decision will not 'involve' an error of law 'unless the error is material to the decision in the sense that it contributes to it so that, but for the error, the decision would have been, or might have been, different': Australian Broadcasting Tribunal v Bond (Bond Media Case) [1990] HCA 33; (1990) 170 CLR 321, 353.
23In Atanasoska Buss JA said [21]:
If a ground of appeal by a party, properly analysed, does not involve a question of law, linguistic gymnastics in the formulation of the ground cannot alter the position. A ground that asserts a decision is against the evidence and the weight of the evidence does not raise an issue involving a question of law. A court, tribunal or statutory decision-maker does not make an error of law merely because the court, tribunal or decision-maker finds facts wrongly or upon a doubtful basis. Generally see Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [53] - [55] and the cases there cited.
24An appeal 'on a question of law' is not an appeal by way of rehearing; it is in the nature of judicial review, which challenges the legal correctness of what the lower court has done. See Osland v Secretary, the Department of Justice (No 2) [2010] HCA 24; (2010) 241 CLR 320 [18].
25Once it has been established that a ground involves a question of law, it is unnecessary to consider whether additional questions of law arise, as the whole decision of the arbitrator, and not merely the question of law identified, is open to review: XCO Pty Ltd v Federal Commissioner of Taxation [1971] HCA 37 [10]; [1971] HCA 37; (1971) 124 CLR 343, 349; Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [18].
26If a question of law is involved and leave to appeal has been granted, the District Court must undertake a 'real review' of the application, but on the materials before the arbitrator. It is not a hearing de novo. The appellant must establish some error, either of fact, law or logic before the court may disturb the arbitrator's findings: Pacific Industrial Co v Jakovljevic [20] and [26].

The statutory framework - payment of compensation

Section 18(1) of the Act provides that if an injury of a worker occurs, the employer shall, subject to the Act, be liable to pay compensation in accordance with sch 1.
By s 5(1) of the Act injury is relevantly defined to mean -
…
(c)a disease contracted by a worker in the course of his employment at or away from his place of employment and to which the employment was a contributing factor and contributed to a significant degree; or
(d)the recurrence, aggravation, or acceleration of any pre-existing disease where the employment was a contributing factor to that recurrence, aggravation, or acceleration and contributed to a significant degree.
but does not include a disease caused by stress if the stress wholly or predominantly arises from a matter mentioned in subsection (4) unless the matter is mentioned in par (a) or (b) of that subsection and is unreasonable and harsh on the part of the employer.
Section 5(1) of the Act defines disease as including any physical or mental ailment, disorder, defect or morbid condition, whether of sudden or gradual development.
The matters referred to in s 5(1) of the Act are identified in s 5(4) of the Act, which reads:
For the purposes of the definition of injury, the matters are as follows:
(a)the worker's dismissal, retrenchment, demotion, discipline, transfer or redeployment; and
(b) the worker's not being promoted, reclassified, transferred or granted leave of absence or any other benefit in relation to the employment; and
(c) the worker's expectation of –
(i) a matter; or
(ii) a decision by the employer in relation to a matter.
The effect of the Act is that a worker who in the course of his employment contracts a disease caused by stress is entitled to compensation. However there are limitations. A worker is not entitled to compensation where the disease was caused by stress that arose wholly or predominantly from the matters specified in s 5(4)(a) of the Act, unless there has been conduct that is unreasonable and harsh on the part of the employer: Housing Industry Association Limited v Murten [2004] WASCA 139 [20].

Consideration

Natural Justice

Grounds 1, 2, 3 and 4 may be dealt with together. In oral submissions it became clear that what Mr Cullen primarily asserted was a breach of natural justice. The arbitrator's finding was that 'the contraction of Mr Cullen's disease on or about 23 November 2016 was as a result of stress arising from an expectation that he might or would receive a final performance rating of D/IR and that that expectation was about a s 5(4)(b) matter being "any other benefit in relation to the employment" '. However at the hearing there was no examination as to the effect of the grant or otherwise of a benefit or the effect of an expectation of a benefit. The primary focus at the hearing in relation to s 5(4) of the Act was upon whether Woodside's conduct constituted discipline. Woodside's reply, opening and closing submissions were directed to that issue. The hearing proceeded on that basis and that was the sole ground relied upon by Woodside in relation to s 5(4) issues.
As to the issue of expectation the arbitrator found that notwithstanding that Mr Ridley had told Mr Cullen that he would receive a proposed overall performance rating of D/IR, no decision had actually been made about Mr Cullen's overall performance rating. In the circumstances the arbitrator concluded that it 'must be the case' that Mr Cullen's stress arose from an expectation of his overall performance rating after review and calibration.
Natural justice requires that a party be given a reasonable opportunity to present their case: Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571, 589.
What amounts to a reasonable opportunity to present a case depends on the circumstances of the case, the nature of the jurisdiction, the subject matter that is being dealt with and the statutory provisions governing the power or jurisdiction being exercised: National Companies & Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296, 311 - 312 (Gibbs CJ); SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 [26].
As a general rule a person will not be afforded a reasonable opportunity to present his or her case if he or she is not entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576, 591 - 592; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 [22].
Fairness is essentially a practical concept. It is not abstract in nature. The law of procedural fairness is concerned to avoid practical injustice: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37] (Gleeson CJ); Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149 [4], [55].
In Apache Northwest Pty Ltd v Agostini [No 2] [2009] WASCA 231 Buss JA summarised the position in relation to disclosure by a decision‑maker to a party in the following way:
217Ordinarily, a decision-maker is not required to disclose to a person to whom procedural fairness must be accorded the decision-maker's mental processes, provisional views or proposed conclusions before a final decision is made. Similarly, the decision-maker is not, ordinarily, obliged to send to a person to whom procedural fairness must be accorded, a draft of a report by the decision-maker which contains findings adverse to the interests of the person, for the purpose of enabling him or her to make comments or submissions. See Minister for Health v Thomson [1985] FCA 208; (1985) 8 FCR 213, 224 (Beaumont J); Alphaone, 590 - 591; Ex parte Palme [22]; OzEpulse Pty Ltd v Minister for Agriculture, Fisheries and Forestry [2007] FCA 1601; (2007) 163 FCR 562 [55] (Emmett J).
218Although procedural fairness does not, ordinarily, require the decision-maker to reveal a proposed conclusion to a person to whom procedural fairness must be accorded, it may be necessary, in a particular case, for the adverse conclusion to be disclosed and for the person to be given an opportunity to comment on or make submissions in respect of it, if the proposed conclusion could not reasonably have been anticipated. See South Sydney City Council [260] - [261] (Mason P, Ipp AJA agreeing); OzEpulse [57].
Woodside's written submission as to the natural justice ground read:
32.The Respondent acknowledges the Appellant's arguments about natural justice but says that those principles do not truly apply here because the history of the development of the symptoms was referred to by the Appellant in his evidence and by his witness, Dr Ng and the Respondent's witness, Dr Chang and it is simply a finding which is based on their evidence.
33.If however, there has been a denial of natural justice on this issue, it is of no significance in the determination of the Application because, as explained by the Arbitrator in paragraphs [140] and [192], his alternate finding is that the origin of the stress was Mr Ridley's Actual decision and conduct in advising the Appellant of the performance rating in November 2016 (which was the basis of the Appellant's claim in the Arbitration) and that in any event, that Action was an excluded matter, pursuant to Section 5(4)(b) of the Act, being in essence a managerial decision relating to work performance.
34.The alternate finding is one that can sit sensibly within the determination of the issues by the Arbitrator in that there appears to be no dispute that that was the initial conduct by the Respondent's employee Mr Ridley, which caused the initial stress and that his subsequent ongoing symptomology related to and evolved from that.
The arbitrator concluded that that the whole or predominant cause of Mr Cullen's psychiatric disease was stress related to an expectation of or a loss of a benefit for the purposes of s 5(4)(b) of the Act. However there was no evidence to support that conclusion. That was not the evidence of Mr Cullen, Dr Ng or Dr Cheng. There was no evidence to support the finding.
I am satisfied in the circumstances that there was a denial of natural justice by the arbitrator. It was not put to Mr Cullen that any disease he suffered was wholly or predominantly caused by his expectation of or a loss of employment related benefits. Further Woodside did not submit to the arbitrator that such a finding was open. That was not the case that Mr Cullen had to meet. Absent notice that that was the case he had to meet he was denied the opportunity of putting evidence before the arbitrator and making submissions. The evidence not only could have come from Mr Cullen but also from the medical practitioners who had examined him.
If a breach of the requirements of procedural fairness is established, a new trial will be ordered unless there was no possibility that the denial of procedural fairness could have affected the outcome: Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, 147.
This is not a case where it can be said that the opportunity to present evidence and make submissions could not have made a difference to the outcome.
Ground 3 alleges an error of law in failing to consider an issue namely whether Mr Cullen had suffered an injury as defined in s 5(d) of the Act, being a recurrence, aggravation, or acceleration of a pre‑existing disease.
The Act does not prevent an injury arising where a pre-existing disease – albeit caused by matters which are excluded – recurs or is aggravated or accelerated by matters which are not: FAI General Insurance Co Ltd (De‑Registered) v Goulding [2004] WASCA 167 [61] ‑ [65] (Templeman J).
At the commencement of the hearing the arbitrator summarised the position of the parties. Counsel for Woodside then observed that there was an issue as to the date of the injury and that then when the disease was contracted 'could only be really resolved at the conclusion of the hearing.'
Mr Cullen submitted that he had sustained injuries as defined in s 5(c) and s 5(d) of the Act and that based upon the evidence of Dr Ng's it was open to find that there was an aggravation of a pre-existing condition on or about 6 April 2017.
Notwithstanding Mr Cullen's submission the arbitrator dealt with the application on the basis it was a s 5(c) injury. There was no mention in the reasons of an allegation based upon a s 5(d) injury.
Woodside's submission is that there was no further evidence as to the nature and extent of the exacerbation, nor whether anything flowed from it, nor whether it of itself rendered Mr Cullen unfit for work or requiring further treatment.
Further Woodside submits that the s 5(d) injury claim was not a matter contained in the Application for Arbitration which rather relied on the November 2016 date as being causative of the 'disease'.
The claim pursuant to s 5(d) was never abandoned. I am satisfied the arbitrator was required to deal with the alleged s 5(d) injury. He did not do so and this constituted an error of law.
The determination of the issues raised by the application before the arbitrator necessarily involves an examination of all the circumstances of Mr Cullen's employment with Woodside. Part of that examination requires consideration of benefits received or otherwise. There were conversations between Mr Cullen and Woodside in relation to his performance management. There were also communications by email. The existence or otherwise of a benefit or expectation of a benefit is a matter which requires a consideration of all of the evidence in the case. Factual findings made in relation to the effect of a benefit or the expectation of a benefit may impact upon other findings which have been made by the arbitrator.
In circumstances where additional findings may be required upon a rehearing it is inappropriate and unnecessary to consider the remaining grounds of appeal or the cross-appeal.
The arbitrator has made errors of law as identified in amended grounds 1, 2, 3 and 4. Leave to appeal in relation to each of these grounds should be granted and the appeal allowed.

Conclusion

I therefore order:
1.Leave to amend the proposed grounds of appeal in accordance with the minute dated the 2 June 2021.
2.Mr Cullen have leave to appeal is in relation to grounds 1, 2 and 4 of the notice dated 2 June 2021.
3.The appeal is allowed.
4.The application for arbitration dated 22 June 2018 be remitted to the Workers' Compensation Arbitration Service (WA), differently constituted for hearing.
5.The cross-appeal is dismissed.
I will hear the parties as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CG
Associate to Judge Stavrianou
10 JUNE 2021