Dawson v Secretary, Ministry of Health - [2020] NSWWCCPD 16

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Dawson v Secretary, Ministry of Health [2020] NSWWCCPD 16
APPELLANT:	Karen Dawson
RESPONDENT:	Secretary, Ministry of Health
INSURER:	QBE Insurance (Australia) Ltd as agent for NSW Self Insurance Corporation
FILE NUMBER:	A2-5300/18
ARBITRATOR:	Mr M Douglas
DATE OF ARBITRATOR’S DECISION:	13 September 2019
DATE OF APPEAL DECISION:	19 March 2020
SUBJECT MATTER OF DECISION:	Deemed worker – Clause 16 of Schedule 1 of the Workplace Injury Management and Workers Compensation Act 1998 – whether evidence of “co-operation”; weight to be given to oral evidence – Devries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472; Shellharbour City Council v Rigby [2006] NSWCA 308 applied
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr C Hart, counsel
Bale Boshev Lawyers
Respondent:
Mr D Stewart, counsel
Rankin Ellison Lawyers
ORDERS MADE ON APPEAL:	1. The Arbitrator’s Certificate of Determination dated 13 September 2019 is confirmed.

INTRODUCTION AND BACKGROUND

Ms Karen Dawson (the appellant) was working as a volunteer for St John Ambulance Australia (NSW) (St John) in the Hamilton Division on 18 September 2015, when she suffered a right ankle injury. The injury occurred when the appellant was assisting the Divisional Superintendent, Grahame Stoddart, to erect a shade at an event at the Broadmeadow Racecourse. St John were providing first aid services for the event at the request of the Newcastle Jockey Club.
The appellant claimed treatment expenses and a lump sum pursuant to s 66 of the Workers Compensation Act 1987 (the 1987 Act), relying on cl 16 of Sch 1 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The clause provides that in some circumstances, voluntary ambulance workers are deemed workers and entitled to compensation in accordance with the 1987 Act. The clause relevantly provides as follows:
“16 Voluntary ambulance workers
(cf former Sch 1 cl 16)
(1) A person who (without remuneration or reward) voluntarily and without obligation engages in any ambulance work with the consent of or under the authority and supervision of or in co-operation with the Health Administration Corporation constituted by the Health Administration Act 1982 is, for the purposes of this Act, taken to be a worker employed by that Corporation.
…
(3) In this clause, ambulance work means work in or in connection with the rendering of first aid to, or the transport of, sick or injured persons.”
The matter had previously been the subject of an appeal from an earlier arbitral decision. The appeal was determined by Deputy President Snell.[1] Deputy President Snell revoked the Arbitrator’s decision and remitted the matter to another arbitrator for re-determination.
[1] Secretary, Ministry of Health v Dawson [2019] NSWWCCPD 30 (Dawson).
The matter came to arbitration on 5 September 2019. The Arbitrator issued a Certificate of Determination (COD) on 13 September 2019, in which he found that the appellant was not a deemed worker within the meaning of cl 16 of Sch 1 and entered an award in favour of the respondent.
The appellant appeals the decision.

ON THE PAPERS

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

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met, and the decision is not interlocutory in nature (s 352(3A)).

ADDITIONAL EVIDENCE

Section 352(6) of the 1998 Act provides that fresh evidence or additional or substituted evidence that was not before the Arbitrator in the arbitral proceedings may only be admitted on appeal with the leave of the Commission. The Commission is not to grant leave unless the Commission is satisfied that:
(a) the evidence was not available to the party and could not be reasonably obtained by the party before the proceedings, or
(b) the failure to grant leave would cause a substantial injustice in the case.
The appellant initially indicated in her appeal that she did not seek to tender fresh or additional evidence.[2] The respondent filed its Notice of Opposition to Appeal Against Decision of an Arbitrator with attached submissions. The appellant then filed submissions in reply to the respondent’s submissions, as she was invited to do by the delegate of the Registrar. In that reply, the appellant sought to adduce “new evidence” in the form of:
(a)    the New South Wales Health Services Functional Area Supporting Plan (HEALTHPLAN);
(b)    the Model Litigant Policy, and
(c)    a file note dated 25 July 2019 written by the appellant’s solicitor.
[2] Appellant’s amended written submissions dated 25 October 2019, [7].
The appellant submits that the HEALTHPLAN is clear evidence that St John participates in the plan and maintains a formal resource commitment agreement with NSW Health, which supports the assertion that the appellant was working in co-operation with NSW Health.
The appellant submits that the respondent maintained at the arbitration that there was no evidence that there was co-operation between St John and the Health Administration Corporation. The appellant says that the Arbitrator became fixed upon there being no evidence, and this evidence demonstrates that the respondent’s position was “uniformed” and the Arbitrator’s reasons are infected by error. The appellant further submits that the document affects the credibility and standing of Ms Murphy’s evidence.
The appellant seems to rely on the Model Litigant Policy to again criticise Ms Murphy’s evidence, alleging Ms Murphy has breached the model litigant policy.
In relation to the appellant’s solicitor’s file note, the appellant submits that it is a record of the Arbitrator suggesting that the respondent should adduce further evidence. The appellant submits that the recommendation by the Arbitrator falls into the category of creating an apprehension of bias, which can only be remedied by a re-hearing.
The respondent was given the opportunity to respond to the application to adduce additional evidence.
The respondent submits that the HEALTHPLAN is entirely irrelevant to this matter and that the appellant’s submission is misconceived. The respondent contends that the appellant’s suggestion of impropriety should be rejected.
The respondent submits that the issue identified by the Arbitrator, about which both parties agreed, was whether or not the ambulance work the appellant was doing at the time of the injury was in co-operation with the Health Administration Corporation. The appellant says that evidence of co-operation with the Health Administration Corporation at some other time is irrelevant.
The respondent submits further that the appellant misrepresents the HEALTHPLAN, which was a plan put in place pursuant to the State Emergency and Rescue Management Act 1989 and was a plan to deal with state emergencies as defined in that Act. The respondent submits that the event at the Broadmeadow Racecourse was “a far cry” from a state emergency. The respondent adds that St John’s commitment to the plan is only for the purpose of participating in a state of emergency.
The respondent refers to other examples within the HEALTHPLAN which it says demonstrates that the document does not assist the appellant’s case.
The respondent also submits that:
(a) the document, which was obtained by the appellant without the respondent’s assistance, was clearly available before the proceedings commenced and could have been obtained by the appellant at that time, and
(b) the appellant has not demonstrated how a different outcome would have been achieved had the document been before the Commission, given that the document is irrelevant to the issue to be determined.
The respondent refers to the principle established in Chep Australia Ltd v Strickland,[3] which was applied by the Commission in Parsons v Dell Australia Pty Ltd,[4] and which requires the appellant to show that had the document been before the Arbitrator, there would have been a different outcome.
[3] [2013] NSWCA 351; 12 DDCR 501 (Strickland).
[4] [2020] NSWWCCPD 2.
The respondent submits that the appellant’s assertions as to the respondent’s conduct are baseless, should not have been put and should be rejected.

Consideration

The Court of Appeal considered the Commission’s power to admit late evidence on appeal in Northern New South Wales Local Health Network v Heggie,[5] in which Basten JA said that:
“the basic purpose of the power in s 352(6) is to allow the Commission to admit further additional evidence which, if accepted, would be likely to demonstrate that the decision appealed against was erroneous.”[6]
[5] [2013] NSWCA 255; 12 DDCR 95 (Heggie).
[6] Heggie, [66].
Barrett JA also considered the Commission’s power to admit further evidence on appeal in Strickland, where his Honour observed:
“The part of s 352(6) concerning ‘substantial injustice’ does not direct attention to possibilities or potential outcomes. The task is to decide whether absence of the evidence ‘would cause’ substantial injustice in the case. There must therefore be a decision as to the result that ‘would’ emerge if the evidence were taken into account and the result that ‘would’ emerge if it were not. If the result would be the same on each hypothesis, the ends of justice cannot be said to have been defeated by exclusion.”[7]
[7] Strickland, [31].
The appellant does not offer any explanation as to why the evidence was not obtained earlier. The HEALTHPLAN document, which was signed by the Director General of NSW Health on 29 October 2013, was clearly in existence well before the arbitral proceedings and could have, with due diligence, been obtained before those proceedings. Applying the principles in Heggie and Strickland, it is therefore incumbent upon the appellant to establish that, had the document been before the Arbitrator, it would have produced a different outcome. Similarly, the model litigant policy and the solicitor’s file note were in existence well before the arbitral proceedings. In order to have those documents admitted, the appellant is also required to show that if relied upon, the Arbitrator would have come to a different conclusion.

The HEALTHPLAN

The cover page of the NSW HEALTHPLAN describes the plan as “A supporting plan to the New South Wales State Emergency Management Plan.” The document defines the word “emergency” as it is defined in the State Emergency and Rescue Management Act 1989,[8] that is an actual or imminent occurrence (including natural disasters, war or epidemics) which:
(a) endangers or threatens the health or safety of people or animals of the state, or
(b) destroys or damages or threatens to destroy or damage property and a significant and co-ordinated response is required.[9]
[8] State Emergency and Rescue Management Act 1989, s 4(1).
[9] HEALTHPLAN, p 41.
As part of his reasons, the Arbitrator said that there was no evidence that the Health Administration Corporation and St John had ever planned, co-ordinated, organised or discussed how first aid services would be provided at race meetings, and that there was no evidence that the Health Administration Corporation was even aware that St John were providing first aid services to the Newcastle Jockey Club.[10] The HEALTHPLAN is not evidence of any arrangement with St John or co-operation between the Health Administration Corporation in respect of the first aid services St John provided at race meetings.
[10] Dawson v Secretary, Minister of Health [2019] NSWWCC 302 (reasons), [36]–[37].
I do not accept that the HEALTHPLAN constitutes compelling evidence that, if it had been before the Arbitrator would result in a different outcome.

The model litigant policy

The model litigant policy is of no assistance to the appellant’s appeal. I have reviewed the transcript of the arbitral proceedings and cannot identify any circumstance where the respondent has acted without transparency or asserted its position to the detriment of the appellant other than in proper evidence-based circumstances.
The model litigant policy does not extend to require litigants to forego invoking their fundamental rights or privileges[11] and does not impinge on a litigant’s ability to enforce its substantive rights.[12] Allegations of a breach of the model litigant policy are serious allegations that should not be made without proper foundation.[13]
[11] Brandon v Commonwealth of Australia [2005] FCA 109, [11].
[12] Elston v Commonwealth of Australia [2014] FCA 704, [72].
[13] Director of Fair Work Building Industry Inspectorate v McDermott [2016] FCA 1147.
The only legal remedy available to a person aggrieved by a breach of the model litigant policy is potentially a favourable costs order,[14] which is not available in the Commission’s jurisdiction, except in some limited exceptions that do not apply to the appellant.
[14] Galea v Commonwealth of Australia (No. 2) [2008] NSWSC 260.
In any event, the role of the Presidential member in this jurisdiction is limited to correction of error in the Arbitrator’s decision. The conduct of the respondent in its defence of this claim does not constitute a breach of the model litigant policy nor has it resulted in an error of fact, law or discretion in the Arbitrator’s decision-making process.

The solicitor’s file note

The appellant relies on the solicitor’s file note to support her assertion that the Arbitrator’s suggestion to the respondent to obtain further evidence created in her mind an apprehension of bias. This issue was not raised before the Arbitrator. The role of a Presidential member is to determine whether the arbitrator’s decision was, or was not affected by error, and the rectification of such error. An arbitrator cannot have erred by failing to determine an issue that was not before him or her and it has been said many times that an arbitration is not a dress rehearsal. The parties cannot simply wait for an outcome and then raise a new issue on appeal.[15]
[15] Super Retail Group Services Pty Ltd v Uelese [2016] NSWWCCPD 4, [92].
In any event, the appellant is complaining about what the Arbitrator said in a telephone conference. The file note recorded that the Arbitrator:
“asked the respondent if there was anyone in their organisation that may have some knowledge of dealing with the St John Ambulance, eg setting protocols or training ... [The Arbitrator] reminded them that they had to be a ‘Model Litigant’ in that regard and disclose anything they could find out”.
As I read the file note, the Arbitrator was not providing an advice on evidence to the respondent. On the contrary, the Arbitrator, in my view, was attempting to have before the Commission any evidence that existed that might shed light on the appellant’s case. The Arbitrator’s overall duty pursuant to s 355 of the 1998 Act includes the identification of issues and application of practical solutions to those issues.[16] In the circumstances, the approach taken by the Arbitrator in the telephone conference was not inappropriate.
[16] South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421, [104].
The appellant has not shown that the admission of the file note would result in a different outcome.

Conclusion

It follows that I am not satisfied that any of the documents are relevant and would lead to a different outcome. For all of the above reasons, the documents are not admitted.

THE RELEVANT EVIDENCE

The appellant’s evidence

The appellant provided a statement dated 16 December 2016.[17] The appellant said that she had been a member of St John Ambulance Australia (NSW) since 2008 and had been a member of the Hamilton Division since July 2015. The appellant described how the injury occurred. She said that there was a gust of wind and she became wrapped in the wall of the frame, which caused her to fall.
[17] Application to Resolve a Dispute (ARD), pp 278–279.
The appellant said that Superintendent Stoddart provided treatment for the injury until the ambulance arrived. The appellant advised that the ambulance officers gave the appellant morphine intravenously and took her to John Hunter Hospital, where she was admitted. The appellant said that before she was taken to hospital, Superintendent Stoddart gave the ambulance officers a pink copy of a form he had completed, which the appellant identified as an “OB12”.
The appellant described the extensive treatment she was provided thereafter and the difficulties she experienced. She reported that she was absent from work for a period of 28 weeks.
The appellant provided a supplementary statement dated 15 June 2018.[18] The appellant stated that when she was performing the volunteer work, she was “working in co-operation with the health agencies in [her] area, such as NSW Ambulance, hospitals and other emergency workers employed in the public health sector (HAC).”
[18] ARD, p 376.
The appellant said that when there is an injury, the volunteer is required to complete a Confidential Patient Record (Patient Record) attached to which is a pink copy. She said the pink copy is given to the officers of the health network so that it can be taken with the patient to the emergency department. The appellant attached a copy of that document to her statement. [The Patient Record is the document previously referred to by the appellant as an OB12.]
The appellant said that St John provided training and has strict protocols and guidelines which the volunteer must follow in order to ensure that patients are transferred to the Health Administration Corporation. The appellant stated that those procedures ensure best outcomes from the patient’s admission and treatment by the Health Administration Corporation.
The appellant provided a further statement dated 26 September 2018.[19] In that statement, the appellant stated that through her role as an enrolled nurse, she is aware that the Health Administration Corporation is the body operating the local health networks in accordance with the Health Administration Act 1982 which is a function of the Minister for Health in New South Wales.
[19] ARD, pp 399–404.
The appellant said that on the back of the pink copy of the Patient Record referred to in her earlier statement, there is a privacy statement. She provided a copy of that document.[20]
[20] ARD, pp 403–404.
The appellant also attached a copy of the Patient Record form that was in use at the time of making her latest statement, as well as the guidelines for completing that document.[21] The appellant said that the guidelines included an instruction relating to the escalation of patient care to the relevant Ambulance Service, which involves co-operation with that service. The appellant stated that the privacy statement includes provision for the disclosure of health information from the Confidential Patient Record to NSW Ambulance personnel who are employed by the local health network as part of the Health Administration Corporation. The appellant said that in her experience, the provision of the pink copy of the Patient Record occurs during the co-operation and supervision of the transfer of patient care within the local health network, which is run by the Health Administration Corporation. The appellant maintains that this procedure is intended to ensure best treatment outcomes, which is in accordance with the statutory functions of the Minister for Health. The appellant said that she always followed the protocols, which included the requirement to call NSW Ambulance if a patient deteriorated and to remain with the patient while the patient was being treated and transferred. The appellant stated that the volunteer would receive direction from NSW Ambulance employees.
[21] ARD, pp 405–408.

The appellant disputed that there was no co-operation with or supervision by the Health Administration Corporation, the local area health network or NSW Ambulance personnel. The appellant asserted that the work she did helped to achieve the core purpose of the Health Administration Corporation, which was to promote, protect, develop, maintain and improve the health and well-being of the population while having regard to the other resources available.
The appellant also gave oral evidence at the arbitration.[22]
[22] Transcript of Proceedings (T), Dawson v Secretary, Minister of Health [2019] NSWWCC 302, Arbitrator Douglas, 5 September 2019, T 30.20–33.7.
The appellant was briefly cross-examined by the respondent about the Patient Record, which bore the document number OB12. The appellant was referred to the second page and what was referred to as a square box bearing the heading “Head Injury Advice.” The appellant confirmed that the pink copy of the document was provided to the patient in accordance with the instruction on the document.
The appellant’s evidence given, when re-examined by her counsel, added nothing further to her statement evidence.[23]
[23] T 33.20–39.29.

Ms Michele Murphy

Ms Michele Murphy, the Manager of Insurance and Risk employed by the respondent, provided a statement dated 31 October 2018.[24]
[24] Reply to Application to Resolve a Dispute (Reply), pp 1–5.
Ms Murphy said that she had been employed by the respondent since January 2010. She described her role as including:
“overall leadership and strategic management of workers compensation across health through all of the Local Health Districts, and management of other insurable risks and registered hospital volunteers.”[25]
[25] Reply, p 2 [8].
Ms Murphy explained that, as she understood the appellant’s claim, the appellant was alleging that when carrying out her duties as a volunteer for St John, she was required to co-operate with the Health Administration Corporation. Ms Murphy said that, to her knowledge, the Health Administration Corporation had no relationship with St John Ambulance. Ms Murphy stated that:
(a)    at no time had a St John Ambulance worker or volunteer ever been included in any workers compensation policy;
(b)    St John’s vehicles were never included in the Health Administration Corporation’s vehicle declaration or the vehicle declaration for NSW Ambulance;
(c)    St John had never been identified as an organisation or entity within the NSW Health Annual report;
(d)    St John was not a non-government organisation that received funding from NSW Health;
(e)    the Health Administration Corporation did not exercise any control over the operations of St John Ambulance;
(f)    she was not aware of any affiliation between NSW Ambulance and St John Ambulance, and
(g)    the Health Administration Corporation did not indemnify or give approval or instruction to St John about attending events.
Ms Murphy said that the appellant’s work as a volunteer with St John was solely at the direction of St John and was not with the consent of or under the authority or supervision of Health Administration Corporation. Ms Murphy added that the Health Administration Corporation would have no knowledge of St John’s work.
Ms Murphy stated that the pink copy of the Patient Record referred to by the appellant was St John’s internal document and was not required by NSW Health or NSW Ambulance who would each complete their own documents and patient records.
Ms Murphy denied that the appellant voluntarily attended the events with the consent or authority of the Health Administration Corporation. Ms Murphy added that there was no indication in the NSW Health annual financial report of any payment or reimbursement from NSW Health to St John.
Ms Murphy was also cross-examined by the appellant’s counsel.[26]
[26] T 41.19–74.13.
Ms Murphy was asked if she had any knowledge of the legislation that created the Health Administration Corporation and replied that she had read them but did not do so on a daily basis. Ms Murphy agreed that her knowledge was limited to her day to day experience in her role as the insurance and risk manager and her experience with employees and volunteers within the NSW Health network and ambulance stations. Ms Murphy further agreed that her duties were office-based and not in the field.
Ms Murphy said that she was required to complete and authorise workers compensation declarations annually for both paid workers and volunteers. Ms Murphy was referred to her evidence about the NSW Health Annual Report, which she said was a large document that had to be tabled in parliament and contained a complete list of every single entity that receives any payment or income through the health network books.
Ms Murphy denied that there was any transfer of care process between NSW Ambulance and St John. She disagreed that a hand over of information from St John to NSW Ambulance would ensure the best outcome for the patient. Ms Murphy explained that paramedics are professionally trained and do not need to rely on St John’s volunteers. Ms Murphy said that NSW trained paramedics do their own observations and treat the patient accordingly. Ms Murphy conceded that there may be an occasion when the Ambulance officer might require assistance in moving a patient but said that in those circumstances, the officer would seek the assistance of anybody available and it would not need to be a St John volunteer.

The documentary evidence

The Patient Record, which was referred to by both the appellant and Ms Murphy and was the subject of cross examination was annexed to the appellant’s statement dated 26 September 2018.[27] The blank document contained various sections in which to record details such as the patient’s personal details, the history of what had occurred, the patient’s vital signs and the treatment provided to the patient. The second document annexed to the appellant’s statement dated 26 September 2018 contained similar sections for information to be recorded, but also included a guide to using the form.[28] Again, nothing was recorded in that document.
[27] ARD, pp 403–404.
[28] ARD, pp 405–408.
The appellant also relied on the New South Wales Government Gazette number 49 dated 12 June 2015.[29] The Gazette contained notice of an Order issued by the Chief Executive Officer of the WorkCover Authority (the Workers Compensation (Ambulance Services Fees) Order 2015 (the Order)).[30] The Order provided for a list of fees payable to various organisations (including St John) for services provided in respect of ambulance or paramedic services. The appellant relied on this document as evidence that the Health Administration Corporation consented to or co-operated with the provision of ambulance services by St John, as required by cl 16 of Sch 1 of the 1998 Act.
[29] ARD, pp 451–462.
[30] ARD, pp 453–454.

THE ARBITRATOR’S REASONS

In his Statement of Reasons attached to the COD, the Arbitrator provided a detailed summary of the evidence given by both the appellant and Ms Murphy. In relation to Ms Murphy’s evidence, the Arbitrator concluded that:
“The impression I formed of Ms Murphy when giving her oral evidence is that she did so thoughtfully and with circumspection, seeking to take care to provide accurate and truthful answers to the questions that were put to her. I consider she was a truthful witness. I accept the evidence she gave.”[31]
[31] Reasons, [28].
The Arbitrator reviewed the legislative background in relation to the incorporation of the Health Administration Corporation in accordance with s 9 of the Health Administration Act 1982. He noted that s 8A of that Act gave the Health Administration Corporation the power to exercise the respondent’s functions if the respondent so determined.
The Arbitrator observed that the matter had proceeded on the basis that the Health Administration Corporation was entitled to exercise the functions of the respondent with respect to the provision of ambulance services.
The Arbitrator referred to s 67B of the Health Services Act 1997 (the Health ServicesAct) which he said enabled the respondent to co-operate with other organisations (including voluntary organisations) for the purpose of providing ambulance services, which would include St John. The Arbitrator noted that the issue for determination was whether the respondent actually did co-operate with the work the appellant was doing voluntarily for St John on the day of her injury. The Arbitrator also noted that it was uncontentious that the appellant was performing “ambulance services” as required by cl 16 of Sch 1 of the 1998 Act on that day.
The Arbitrator further referred to the decision issued by Deputy President Snell in Dawson, in which Snell DP considered what was required to establish that a putative worker was engaged in ambulance work in co-operation with the Health Administration Corporation. The Arbitrator observed that Snell DP held that:
(a)    it was not necessary for the appellant to have an obligation to do the work;
(b)    with respect to whether the work is done in co-operation with the Health Administration Corporation, cl 16 directs attention to the relationship between the appellant and the Health Administration Corporation, and
(c)    for the purpose of cl 16, the word “co-operation” should have its primary and natural meaning which is to “work or act together or jointly”, as defined by the Macquarie Dictionary.
The Senior Arbitrator observed that he must be satisfied that the appellant was working or acting together with or jointly with the Health Administration Corporation when she was engaged in ambulance work on the date of the injury. The Arbitrator concluded that in his view, the evidence did not establish that the appellant was working or acting together with or jointly with the Health Administration Corporation.
The Arbitrator said that the arrangement whereby the appellant, through St John, attended Broadmeadow racecourse where she was to perform ambulance work that day was an arrangement between St John and the Newcastle Jockey Club. He said there was no evidence that before NSW Ambulance was called to the event that the Health Administration Corporation was informed or aware that St John was providing first aid services to the patrons of the Newcastle Jockey Club that day. The Arbitrator said he could not draw any inference from the evidence.
The Arbitrator acknowledged and accepted Ms Murphy’s evidence that the likelihood was that there was no relationship between the Health Administration Corporation and St John and said that this evidence made it all the more unlikely that the Health Administration Corporation had any awareness before the NSW Ambulance was called to the scene that St John and therefore the appellant was providing first aid services that day. The Arbitrator added that there was no evidence that the Health Administration Corporation and St John had ever planned, co-ordinated, organised or discussed how first aid services would be provided at such events for other bodies.
The Arbitrator again referred to Ms Murphy’s evidence. He formed the view that Ms Murphy was familiar with the work undertaken by NSW Ambulance paramedics when attending a patient. The Arbitrator described Ms Murphy’s role as a leadership role, with the responsibility for strategic management of the insurable risks in relation to employees and volunteers within NSW Health, which included NSW Ambulance employees. The Arbitrator said that those responsibilities would require her to have knowledge of the work that is done by those employed by NSW Health to provide ambulance services, including paramedics.
The Arbitrator accepted Ms Murphy’s evidence that paramedics attending an incident where St John volunteers were present were required to elicit the necessary information about the patient in order to provide the patient with treatment. The Arbitrator also accepted that the pink copy of the Patient Record completed by the St John’s volunteer was handed to the paramedic. The Arbitrator thought it feasible that on occasion, a paramedic may have regard to the pink copy of the Patient Record, but accepted Ms Murphy’s evidence that paramedics:
(a)    were all professionally trained;
(b)    did not require that information from St John, and
(c)    would make their own observations, prepare their own paperwork and complete their own records relating to the patient.
The Arbitrator observed that it was evident from the pink copy of the Patient Record that it was intended for the patient’s safekeeping. The Arbitrator said that although the form was given to the paramedics, there was no evidence that it was handed over to Health Administration Corporation through NSW Ambulance or the local health network with the responsibility of treating the patient. The Arbitrator added that there was no evidence that the staff of the hospital Emergency Department made any use of the document.
The Arbitrator said that if the attending paramedic had resorted to the information in order to gather information about the patient, then in his view that would amount to the St John volunteer and the paramedic working or acting jointly or together. However, the Arbitrator acknowledged that the paramedics were required to collect the information about the patient themselves, so that if the paramedic did use the information in the document, that would be a perchance occurrence of the paramedic using the information to discharge his or her responsibility for collecting the information.
The Arbitrator concluded that he did not consider that the fact that the St John volunteer completed the pink copy of the Patient Record and handed it to the NSW Ambulance paramedic amounted to co-operation between the volunteer and the Health Administration Corporation.
The Arbitrator considered that it was likely that when a St John volunteer called NSW Ambulance to an event in order to transport a patient to hospital, there would be some dialogue between the volunteer and the call centre. Further, there would likely be some dialogue between the volunteer and the paramedic who attended the scene. The Arbitrator said that such dialogue did not substantiate that the volunteer who made the call and first treated the patient up to that point was working or acting together or jointly with the NSW Ambulance paramedics. The Arbitrator said that all it indicated was that the volunteer treated the patient up until the time the volunteer was not competent to provide the further treatment. The Arbitrator observed that the above action did not amount to the appellant and the Health Administration Corporation working together to provide first aid services. This was particularly so where there was no prior discussion or planning in relation to the division of responsibilities for the provision of first aid to patients at events in which St John had arranged with other organisations to provide first aid services. The Arbitrator said that each organisation performed their own separate work.
The Arbitrator considered that what emerged from the evidence was that St John and the Health Administration Corporation worked independently of each other in providing first aid services or treatment to a patient who had been injured at an event in which St John was providing those services up to reaching the point where their competency skills were exhausted. In the Arbitrator’s view, the fact that there may have been communications between the volunteer and the paramedic was purely coincidental and not a consequence of any planning or arrangement about how the first aid was to be administered at such events. The Arbitrator said that the ambulance work that the appellant did on the day of her injury could not have been work done together with the Health Administration Corporation.
The Arbitrator discussed a hypothetical example put to Ms Murphy by the appellant’s counsel in cross examination in relation to the transfer of a large patient into an ambulance, and said that there simply was no evidence that a St John volunteer had ever assisted a paramedic with such a task. Even if there was evidence of that in the past, the Arbitrator considered that he could not conclude that work done later by St John volunteers was done in co-operation with the Health Administration Corporation. Further, if there was such evidence, it did not show that what the appellant was doing on the day of the injury was work done in co-operation with the Health Administration Corporation.
In relation to the appellant’s evidence that occasionally a St John volunteer would stay with the patient during the transfer, the Arbitrator concluded that because the NSW Ambulance paramedics did not need assistance to treat the patient, it was more likely an act of kindness for the volunteer to stay with the patient. The Arbitrator further referred to the appellant’s evidence that in the past, paramedics had provided directions to the St John volunteer. The Arbitrator observed that the appellant did not specify what those directions were. On the basis of Ms Murphy’s evidence that the paramedics did not require assistance in treating patients, the Arbitrator was of the view that it was unlikely that those directions would have been in relation to the treatment or care of the patient. The Arbitrator considered that in any event, such evidence would not permit the conclusion that the work the appellant was doing on the day she was injured, of which the Health Administration Corporation was unaware, was work done in co-operation with the Health Administration Corporation.
In relation to the appellant’s reliance on the Order made in the Government Gazette, the Arbitrator considered that it was fanciful to suggest that the making of the Order provided a basis for which an inference could be drawn that St John and the Health Administration Corporation co-operated in respect of the provision of ambulance services.
The Arbitrator entered an award for the respondent in respect of the appellant’s claim.
The Certificate of Determination issued on 13 September 2019 records:
“The Commission determines:
1. There is an award for the respondent with respect to the applicant’s claim for compensation under ss 60 and 66 of the Workers Compensation Act 1987.
2. The proceedings are discontinued insofar as the relate to they applicant’s claim for weekly payments of compensation”.

GROUNDS OF APPEAL

The appellant brings eight grounds of appeal. The grounds are at times poorly drafted but can be expressed as follows:
(a)    Ground One: the Arbitrator erred in determining that in Dawson, Deputy President Snell made findings as to what was required to prove “co-operation;”
(b)    Ground Two: the Arbitrator erred in determining that it was necessary for the appellant to prove that at the time of the injury, she was co-operating with the Health Administration Corporation;
(c)    Ground Three: the Arbitrator erred in law by confusing the test for “injury” within the meaning of s 4 of the 1987 Act with the necessary element of “co-operation” in applying the standard of proof;
(d)    Ground Four: the Arbitrator erred in law by confusing the test for “injury” within the meaning of s 4 of the 1987 Act with the necessary element of “co-operation” in assessing whether the appellant was a deemed worker within cl 16 of Sch 1 of the 1998 Act;
(e)    Ground Five: the Arbitrator erred in fact and law by finding that the appellant’s evidence, which was uncontested, did not prove that there was the necessary “co-operation” so that the deeming provision in cl 16 of Sch 1 applied;
(f) Ground Six: the Arbitrator erred in law by concluding that the appellant had not discharged the onus of proof in circumstances where the Arbitrator made specific findings in relation to s 67B of the Health Services Act and a factual finding in relation to the transfer of the patient’s care;
(g)    Ground Seven: the Arbitrator erred in fact, law and discretion by finding Ms Murphy’s evidence persuasive, when Ms Murphy’s role was that of Health Manager – Insurance and Risk, and
(h)    Ground Eight: the Arbitrator erred in law by failing to take into account the appellant’s submission that consent was evidence of co-operation.

LEGISLATION

Clause 16 of Sch 1 of the 1998 Act is reproduced at [2] above.
Section 67B of the Health Services Act relevantly provides:
“67B Provision etc of ambulance services
(1)    The Health Secretary has, on behalf of the Crown, the following functions
(a) to provide, conduct, operate and maintain ambulance services,
(b) to co-operate with or provide assistance to any person or organisation for the purposes of providing, conducting, operating and maintaining ambulance services,
…
(e) to consult and co-operate with individuals and organisations (including voluntary agencies, private agencies and public or local authorities) concerned with the provision of ambulance services,
(f) to co-ordinate and plan the future development of ambulance services, and towards that end, to support, encourage and facilitate the organisation of community involvement in the planning of those services,
…
(j) to provide assistance to, or co-operate with, any person or organisation in connection with the depiction of ambulance services in the news or entertainment media,
(k) to exercise such other functions in relation to ambulance services as may be conferred or imposed on the Health Secretary by the regulations.
(2)     The exercise of functions under this section in emergencies and rescue operations is subject to the State Emergency and Rescue Management Act 1989.
(3)     The Health Secretary may delegate the exercise of any function of the Health Secretary under this section (other than this power of delegation) to an appointed body.”

SUBMISSIONS

The appellant made submissions in support of the various grounds of appeal raised by her and the respondent responded to those submissions in its Opposition. In accordance with the Delegate of the Registrar’s Direction, the appellant filed submissions in reply to the respondent’s submissions, for the first time seeking to adduce the further evidence described above. The respondent was provided with the opportunity to respond to that application.
The appellant then forwarded to the Commission further submissions in reply to the respondent’s submissions. There was no provision in the timetable to do so. The appellant made no application to have the timetable extended for that purpose. A decision maker is entitled to disregard submissions that have been provided outside of the timetable set by the Commission.[32] In accordance with the authority in Mills, and to deal with this appeal in as timely a manner as is possible in the circumstances, I decline to consider the further submissions dated 19 February 2020.

Ground One: The Arbitrator erred in determining that in Dawson, Deputy President Snell made findings as to what was required to prove “co-operation”

[32] Bale v Mills [2011] NSWCA 226; 81 NSWLR 498; 282 ALR 336 (Mills).

The appellant submits that in Dawson, Snell DP did not make any conclusive determination of what constituted “co-operation,” or any concluded view on the evidence. The appellant says that the passage from the Deputy President’s determination was simply an observation of the use of statutory interpretation, or “ordinary meaning”. The appellant contends that by considering he was bound by the Deputy President’s conclusion, the Arbitrator applied the wrong standard of proof, elevating the standard to the “Briginshaw” standard. The appellant submits that this is evidenced by the Arbitrator’s findings that:
(a)    he must be satisfied that the appellant was working or acting together or jointly with the Health Administration Corporation;
(b)    Ms Murphy’s position would make her familiar with the work NSW Ambulance paramedics performed when attending to a patient;
(c)    he did not consider that a St John volunteer completing the Patient Record and handing it to a NSW Ambulance paramedic amounted to co-operation between the St John volunteer and the Health Administration Corporation;
(d)    any dialogue that occurred between the St John volunteer and the Health Administration Corporation was a perchance occurrence and would not establish that they were working or acting together, when there was no prior discussion or pre-planning between them;
(e)    in the context of there being no prior discussion between the Health Administration Corporation and St John, the Health Administration Corporation was unaware that the appellant was attending Broadmeadow Racecourse to provide first aid services that day. Consequently, the work the appellant was doing that day was not done in co-operation with the Health Administration Corporation;
(f)    it was fanciful to suggest that the Workers Compensation (Ambulance Fees) Order published in the Government Gazette was evidence that the Health Administration Corporation and St John co-operated with respect to the performance of ambulance services.
The respondent submits that s 352(7) of the 1998 Act provides for a matter on appeal to be remitted to another arbitrator for determination.
The respondent contends that the appellant expressly adopted the definition of co-operation as set out by Snell DP. The respondent says that the Arbitrator was alive to the distinction between applying the definition of “co-operation” in accordance with the decision in Dawson and determining the matter on the evidence before him. The respondent further contends that it is clear from a plain reading of the Arbitrator’s decision, that the Arbitrator carefully examined the evidence before him and was mindful that the relevant onus of proof was that of being on the balance of probabilities. The respondent says that it is simply wrong to assert that the Arbitrator applied a higher standard such as the Briginshaw standard.
The respondent submits that the ground of appeal should be dismissed.

Grounds Two, Three and Four: The Arbitrator erred by determining that it was necessary for the appellant to prove that at the time of the injury, she was co-operating with the Health Administration Corporation and by confusing the test for “injury” within the meaning of s 4 of the 1987 Act with the necessary element of “co-operation”

The appellant’s submission in respect of these three grounds of appeal is simply that the Arbitrator’s determination that she had to be working and “co-operating” at the time or day of her injury for cl 16 of Sch 1 to be enlivened was wrong. The appellant submits that the respondent conceded that the appellant was in fact doing “ambulance work” within the meaning of cl 16 of Sch 1.
The respondent submitted that it sensibly conceded that the appellant was undertaking “ambulance work” at the time of the injury, and the only issue in dispute was whether the ambulance work the appellant was doing was done in co-operation with the Health Administration Corporation. The respondent says that the appellant accepted that this was the issue that required determination.
The respondent asserts that it is difficult to comprehend the appellant’s submissions. It says that it appears the appellant is maintaining the position that there was a sufficient nexus with what she was doing for the necessary “co-operation” to be enlivened where there was some other arrangement in which St John and the Health Administration Corporation may have co-operated at some other time or place.
The respondent further submits that in any event, the Arbitrator was correct to find that while the Health Administration Corporation had the power to co-operate with St John Ambulance, there was no evidence that they did so. In addition, the respondent submits that the Arbitrator was correct to say that he was required to be satisfied that the appellant was working or acting together or jointly with the Health Administration Corporation because that was what was required to satisfy cl 16 of Sch 1.

Ground Five: The Arbitrator erred by finding that the appellant’s uncontested evidence did not prove that there was the necessary “co-operation”

The appellant submits that this error was a product of:
(a)    the Arbitrator’s erroneous view of the findings in Dawson;
(b)    the Arbitrator’s treatment of the evidence identified at [88(a)–(f)] above, and
(c)    applying an erroneous standard of proof.
The respondent submits that the evidence the appellant refers to is the pink copy of the Patient Record, and says that the evidence about that document was that:
(a)    it may or may not be read by the NSW Ambulance paramedic;
(b)    in cross examination, the appellant conceded that the document was provided to the patient, and
(c)    Deputy President Snell reached the same conclusion about the document,
which supported the conclusion reached by the Arbitrator that it was fanciful to suggest that the evidence established co-operation.
The respondent contends that both Snell DP and the Arbitrator were undoubtedly correct to arrive at their conclusions about that document and this ground of appeal should be dismissed.

Ground Six: The Arbitrator erred by concluding that the appellant had not discharged the onus of proof in circumstances where the Arbitrator made specific findings in relation to s 67B of the Health Services Act and a factual finding in relation to the transfer of the patient’s care

The appellant submits that apart from reading the legislation onto the record, the Arbitrator refused to properly consider the effect of s 67B, which created a statutory obligation on the respondent to co-operate with St John, in order to achieve the outcomes which the Minister was bound to pursue. The appellant contends that the absence of any cogent reasoning for the Arbitrator to reject that statutory function discloses error and should be redetermined in her favour.
The respondent disputes that s 67B creates a statutory obligation on the Health Secretary (or a delegate of the Health Secretary) to co-operate. The respondent submits that the section provides that it is a function of the Health Secretary but does not and could not dictate how that function is to be carried out. The respondent contends that the section has nothing to do with St John or the issue that the Arbitrator was required to decide and does not say that the Health Secretary must co-operate with St John. The respondent says that this ground should also be dismissed.

Ground Seven: The Arbitrator erred by finding Ms Murphy’s evidence persuasive, when Ms Murphy’s role was that of Health Manager – Insurance and Risk

The appellant contends that Ms Murphy conceded in cross examination that her role did not involve her in the day to day performance of NSW Ambulance, so that whether she was truthful and gave credible evidence did not elevate her evidence to be capable of persuading the Commission in relation to a material fact. The appellant asserts that her capacity to give evidence about that fact could not be sufficient to lead to an adverse finding in the context of the appellant being the only witness capable of giving that evidence.
The appellant further asserts that Ms Murphy’s role as the compensation and risk manager for the respondent made her an “interested party”.
The appellant contends that the Arbitrator’s reliance on Ms Murphy’s credibility demonstrates a failure to grapple with the concession made by her and the uncontested and untraversed evidence of the appellant which constitutes error in the application of the civil onus of proof.
The respondent submits that the attack on Ms Murphy’s evidence is without foundation and that the matters about which she gave evidence were obviously within her knowledge and experience. The respondent points out that the Arbitrator had the opportunity to listen to and observe Ms Murphy’s evidence and, in those circumstances, the Arbitrator’s assessment of that evidence should not be disturbed on appeal. The respondent submits that the appellant has not pointed to any misuse of advantage, inconsistency with incontrovertible facts or glaring improbability to establish that Ms Murphy’s evidence was not correct, relying on Devries v Australian National Railways Commission[33] as authority for that proposition.
[33] (1993) 177 CLR 472 (Devries).
The respondent asserts that this ground of appeal should also be dismissed.

Ground Eight: The Arbitrator erred in law by failing to take into account the appellant’s submission that consent was evidence of co-operation

The appellant submits that the only binding remitter from Dawson (if such a notion existed in the Commission) was Snell DP’s finding in relation to the Order in the Government Gazette, which was consented to and permitted the payment of expenses to St John for transport in accordance with s 60 of the 1987 Act. The appellant says that at the second arbitration, a submission was again made on this point which was eventually read onto the record and reduced to writing by the appellant’s counsel. The appellant explains that the Arbitrator refused to accept the written submission, and so the appellant’s counsel had to read it onto the record. The appellant says that the submission “cogently” applied the statutory provisions to the forensic enquiry being undertaken.
The appellant contends that the submission does not appear to have been addressed or considered anywhere in the Arbitrator’s reasons. The appellant maintains that it was simply either overlooked or ignored. The appellant also contends that in the context of cl 16 of Sch 1, she had made earlier submissions about the relationship between the Health Administration Corporation, the employees of the local area health network and NSW Ambulance as set out in the Health Services Act. The appellant submits that those submissions were also overlooked, which has resulted in a miscarriage of the Arbitrator’s statutory duty.
The respondent submits that the Arbitrator specifically quoted the submission and specifically dealt with and rejected the supplementary submission, as well as the further written submissions, in his reasons at [29]–[50]. The respondent submits that this ground of appeal should also be dismissed.

RELIEF SOUGHT

The appellant seeks to have the award in favour of the respondent revoked and in its place an award entered in her favour. In the alternative, the appellant seeks to have the matter remitted for re-determination by another arbitrator.
The respondent seeks that the Arbitrator’s Certificate of Determination dated 13 September 2019 be confirmed.

DISCUSSION

The first ground of appeal raises the question of whether, in Dawson, Snell DP made any conclusive findings as to what constitutes “co-operation” for the purpose of cl 16 of Sch 1.
The appellant’s submissions go beyond the scope of the appeal ground and contend that this alleged error led to the Arbitrator applying the wrong standard of proof. Further, the appellant submits that the Arbitrator’s conclusion that Ms Murphy’s role made her familiar with the work that a NSW Ambulance paramedic would perform when attending a patient is also evidence that the Arbitrator had applied a higher standard of proof. Those submissions are more relevant to Ground Three (applying the wrong standard of proof) and Ground Seven (acceptance of Ms Murphy’s evidence) and, accordingly, will be discussed below.
Also, in respect of Ground One, the appellant complains about the Arbitrator’s findings that the following did not constitute evidence of co-operation:
(a)    handing over of the pink copy of the Patient Record;
(b)    any dialogue between the appellant and NSW Ambulance (which was a perchance occurrence), and
(c)    the Order published in the Government Gazette.
These submissions more relevantly go to Ground Three of the appeal, which complains that the Arbitrator applied the wrong standard of proof.
Further under Ground One, the appellant complains about the Arbitrator’s observations that there was an absence of evidence that there was:
(a) any prior discussion between the Health Administration Corporation and the appellant, and
(b) awareness on the part of the Health Administration Corporation that the appellant was attending Broadmeadow Racecourse,
which pointed to there being no evidence of co-operation between the Health Administration Corporation and the appellant and/or St John.
The submissions about the evidence referred to at [113] and [115] above will be dealt with in my consideration of Ground Three.

Ground One

Deputy President Snell discussed the meaning of “co-operation” in response to a challenge made by the then appellant (the respondent in this appeal). The then appellant referred the Deputy President to two authorities dealing with the word “co-operation” without referring to any specific assistance that might be provided by those authorities. The Deputy President noted that neither party pointed to any authority in which the word had been dealt with in the context of cl 16 of Sch 1 and that he also was unable to find any such authority.
The Deputy President made the following observations:
“I do not accept the appellant’s submission that, for the requirement of co-operation to be satisfied, it is necessary that ‘mutual and enforceable obligations’ be in place. The words of the clause do not suggest such a requirement. To the contrary, the situation with which the clause deals is one where a volunteer, without obligation, engages in any ambulance work. It is necessary that the putative deemed worker engage in such work without obligation. There are multiple clauses in Sch 1, dealing with deemed workers, which involve contractual arrangements (by way of example see cll 1, 1A, 2, 2A and 3 of Sch 1). These contrast with the words of cl 16, which do not require the existence of enforceable obligations, and indeed specify that the ambulance work is to be carried out voluntarily and without obligation.
The finding that the Arbitrator made was based on co-operation. The requirement is that the ambulance work be ‘in co-operation with’ the [Health Administration Corporation]. This third scenario may be contrasted with the first two of the scenarios in subcl (1), satisfaction of which requires that the work be ‘with the consent of’ the [Health Administration Corporation], or ‘under the authority and supervision of’ the HAC. The first two of the scenarios direct attention to the [Health Administration Corporation]; did it consent to the person engaging in any ambulance work, or did it exercise authority and supervision over such work. The third alternative directs attention to whether the putative deemed worker engaged in the work ‘in cooperation with’ the [Health Administration Corporation]. It directs attention to the relationship between the alleged deemed worker and the [Health Administration Corporation].”[34]
[34] Dawson, [71]–[76].
The Deputy President noted recent decisions in which appellate courts doubted the utility of using dictionary definitions in statutory construction, but noted the Macquarie Dictionary definition of the word to “co-operate” and said (citations omitted):
“General words ‘should be understood in their primary and natural signification unless there are sufficient indications of some other meaning’. I do not see any indication that the reference in the clause, to ‘co-operation’, should be given other than its primary and natural meaning. Without seeking to quibble with what was said by their Honours in Chapman-Davis, the first of the dictionary definitions referred to above, working or acting together or jointly, in my view describes the primary and natural meaning of ‘co-operation’.”[35]
[35] Dawson, [76].
The Deputy President, adopting the dictionary definition, observed that the conclusion as to whether the work done by the respondent (the appellant in this appeal) was in co-operation with the Health Administration Corporation “in the sense of working together or jointly”[36] depended upon a resolution of the conflict between the evidence of Ms Murphy and that of this appellant. The Deputy President remarked that if Ms Murphy’s evidence was accepted, it would be “difficult to see that the other evidence about the pink copy could lead to a conclusion that the relevant work was ‘in co-operation with’ the HAC”. He said “‘Co-operation’, in the sense of working or acting together or jointly, would not be present.”[37]
[36] Dawson, [77].
[37] Dawson, [77].

On the basis that the Arbitrator had failed to refer at all to the evidence of Ms Murphy, the Deputy President revoked the Arbitrator’s decisions dated 20 December 2018 and 9 January 2019.
The above observations and the conclusions reached clearly disclose that the Deputy President set about to interpret cl 16 of Sch 1 and found that for the purpose of the third alternative within the clause, the clause directs attention to the relationship between the alleged deemed worker and the Health Administration Corporation. Further the word “co-operation” meant “working or acting together or jointly.”
I agree that this is a proper construction of the third alternative provided for in cl 16 of Sch 1, and the statutory meaning of the word “co-operation”.
The appellant’s submission relevant to this ground of appeal is that Snell DP’s consideration of the word “co-operation” was merely in the nature of an observation rather than a conclusive determination, so that the Arbitrator was not bound to adopt it.
I do not accept that submission. It is apparent that in determining the meaning of the word “co-operation,” which is a finding of fact, the Deputy President embarked upon a process of statutory construction. The process of construction commences with the construction of the ordinary or grammatical meaning of the word in its context, having regard to the purpose of the legislation.[38] Such an exercise is part of the functions of the Commission and is, at the Presidential level, in the nature of a judicial exercise[39] which is authoritative in respect of the Commission’s primary decision makers, the arbitrators. The Arbitrator applied that interpretation as he was required to do.
[38] Rail Corporation New South Wales v Brown [2012] NSWCA 296; 82 NSWLR 318 per Bathurst CJ, with whom Beazley and Basten JJA agreed, at [39].
[39] Wilson v Anderson [2002] HCA 29, per Gleeson CJ, [8].
It follows that the Arbitrator did not err in adopting the construction of cl 16 of Sch 1 as determined by Snell DP in Dawson and Ground One of the appeal fails.

Ground Two

The second ground of appeal takes issue with the Arbitrator’s consideration that it was necessary for the appellant to prove that at the time of the injury, she was required to have been co-operating with the Health Administration Corporation. The appellant submits that the Arbitrator’s determination that she was required to be working with the co-operation of the respondent at the time and day of her injury was wrong. The respondent submits that it was conceded that the appellant was performing “ambulance services” and that the only issue for the Arbitrator was whether those services were provided in co-operation with the Health Administration Corporation.
The appellant does not explain why she considers the Arbitrator was wrong. The appellant’s complaint seems to be that the Arbitrator was wrong to consider that the appellant needed to establish that the actual work she was doing was in co-operation with the Health Administration Corporation.
The Arbitrator expressed the approach he was required to take as follows:
“Given what Deputy President Snell held in Dawson’s case, in order that I can find that
Ms Dawson is to be taken to be a worker employed by HAC pursuant to clause 16 of Schedule 1 of the 1998 Act, I must be satisfied that she was working or acting together with or jointly with [the Health Administration Corporation] when she was engaged in ambulance work on 18 September 2015.
In my view, the evidence does not establish that she was.”[40]
[40] Reasons, [34]–[35].
The Arbitrator then provided a review of the evidence relied upon by the appellant and the absence of evidence that would have been relevant to his determination.
The Arbitrator’s approach was consistent with the explicit requirement to establish the element of co-operation in accordance with cl 16 of Sch 1 and was consistent with the approach taken by Snell DP in Dawson. That is, what is required is that the ambulance services provided by the appellant through St John in conjunction with an event at Broadmeadow Racecourse were provided in co-operation with the Health Administration Corporation.
The appellant has failed to identify any error in that approach and Ground Two of the appeal is not made out and fails.

Ground Three

The appellant complains under this ground that the Arbitrator applied a higher standard of proof to that of the civil standard. That is, a satisfaction that the evidence, on the balance of probabilities, was sufficient to establish her case.
The appellant’s submissions do not assist in relation to the identification of any error in the Arbitrator’s careful consideration of the evidence. The Arbitrator determined that the Health Administration Corporation through NSW Ambulance was not co-operating or working jointly with St John. He took into account the handing over of the pink copy of the Patient Record, but after weighing that evidence determined that it was not evidence of co-operation between the Health Administration Corporation and St John. Similarly, the Arbitrator considered the Order and formed the view that he was not satisfied that the Order provided a basis upon which to infer that the Health Administration Corporation and St John co-operated with respect to the provision of ambulance services. The Arbitrator noted, but did not say that he was bound by, Deputy President Snell’s observations as to that evidence.
The Arbitrator noted the absence of evidence that the Health Administration Corporation had any discussion with St John about the provision of ambulance services or any awareness that St John was providing first aid services to the Newcastle Jockey Club. That was an accurate observation. Any prior discussion between the Health Administration Corporation and St John about the ambulance services to be provided by St John to events such as the event at the Newcastle Jockey Club would have been persuasive evidence. Any evidence that the Health Administration Corporation was aware that St John was undertaking those services would also have been probative.
The Arbitrator referred to the relevant legislation, including s 67B of the Health Services Act. The Arbitrator reasoned that although that Act listed co-operation with other organisations as a function of the respondent, that did not constitute evidence that the function was in fact exercised.
The Arbitrator considered the evidence that was before him and the legislative framework. There is nothing in his reasons that would indicate that he applied a greater burden of proof than that of the balance of probabilities. The acceptance of evidence and the weight it is given are peculiarly matters within the province of the trial judge, unless it can be said that a finding was so against the weight of the evidence that some error must have been involved.[41] The appellant has failed to identify any probative evidence that supports her case and more particularly, has not identified error on the part of the Arbitrator in his consideration of the evidence before him. This ground of appeal fails.
[41] Shellharbour City Council v Rigby [2006] NSWCA 308.

Ground Four

Ground Four of the appeal expresses the alleged error as:
“the Arbitrator erred in enlarging and including the issue of ‘injury’ with ‘co-operation …’.[42]
[42] Appellant’s submissions, p 2, Part B.
The appellant’s submissions in relation to this ground are simply an allegation that the Arbitrator erred. There was no issue of “injury” pursuant to s 4 of the 1987 Act and the Arbitrator did not embark on a consideration of the appellant’s occurrence of injury. The ground of appeal is incomprehensible and the absence of any cogent submission to explain or support the ground is fatal.
The onus is on the person who seeks to overturn the decision to establish there are sufficient grounds to do so.[43] It is not sufficient to merely assert error without identifying why and how the conclusion reached by the Arbitrator was wrong.
[43] Singh v Ginelle Pty Ltd [2010] NSWCA 310.
It follows that Ground Four of the appeal fails.

Ground Five

Ground Five asserts that the Arbitrator erred in failing to accept that the appellant’s “uncontested” evidence was sufficient proof that there was the necessary ‘co-operation’ between the Health Administration Corporation and St John.
The appellant submits that this error was a result of the Arbitrator’s erroneous understanding of the findings made by Snell DP in Dawson. I have discussed in Ground One the Arbitrator’s consideration and conclusion reached in respect of the decision in Dawson, which disclosed no error.
The appellant further asserts that the error complained of in this ground of appeal resulted from the Arbitrator applying the wrong standard of proof. I have determined that the Arbitrator did not apply the wrong standard of proof (Ground Three). The assertion made by the appellant of error which was dependent upon the Arbitrator failing to apply the correct standard of proof cannot be accepted.
For the purposes of this ground of appeal, the appellant also relies on error on the part of the Arbitrator in the manner the Arbitrator dealt with the evidence.
The appellant refers to her evidence as “uncontested”. That assertion is patently incorrect. As observed by Snell DP in Dawson, there was a clear conflict in the evidence between the appellant’s evidence and that of Ms Murphy, and it was necessary to consider the evidence of Ms Murphy, which was material evidence.

Ground Six

This ground of appeal asserts that the Arbitrator made specific findings in relation to s 67B of the Health Services Act, and a factual finding in relation to the transfer of the patient care which weighed against the Arbitrator’s determination that the appellant had not discharged the onus of proof.
Inconsistently, the appellant submits that all the Arbitrator did in respect of s 67B was to read the provision onto the record. The appellant submits that the Arbitrator refused to properly consider the effect of the section, which she says created a statutory obligation on the Health Administration Corporation to co-operate with St John in order to discharge the obligations of the Minister of Health. The appellant says that the Arbitrator gave no cogent reason for rejecting that evidence.
The Arbitrator’s consideration of that provision was as follows:
“The section enables the respondent to co-operate with other organisations, which would include St John, to ensure that first aid can be rendered to injured persons. The respondent’s functions include cooperating with and providing assistance to any organisation for the purpose of providing and maintaining ambulance services[44]; consulting and co-operating with organisations, including voluntary agencies, concerned with the provision of ambulance services[45]; and coordinating and planning for future development of ambulance services and facilitating the organisation of community involvement in the planning of those services.”[46]
[44] Section 67B(1)(b).
[45] Section 67B(1)(e).
[46] Reasons, [31].
That passage discloses that the Arbitrator appreciated the content of the section and took an accurate summary.
The Arbitrator’s reason for rejecting the provision as being evidence of the necessary co-operation was:
“The fact that the respondent had power to co-operate with St John with respect to the ambulance work St John did is one thing - the issue in this case is whether the respondent actually did so with respect to the work that Ms Dawson was doing voluntarily for St John on the day she had suffered her injury. As mentioned, it is uncontentious that the work she did that day was ambulance work within the meaning of that term in Clause 16 of Schedule 1 of the 1998 Act.”[47]
[47] Reasons, [32].
The assertion that the Arbitrator merely read the provision onto the record is patently incorrect. The appellant identifies no part of the transcript or the Arbitrator’s reasons where the Arbitrator “refused to properly consider” the effect of s 67B, and it is evident from the above passages that the Arbitrator gave due consideration to the effect of the section.
The appellant has put forward no persuasive argument as to how the Arbitrator erred as alleged and this ground of appeal fails.

Ground Seven

Ground seven complains that the Arbitrator erred in finding Ms Murphy’s evidence persuasive.
The appellant relies on Ms Murphy’s concession that she did not have knowledge of the day to day operations of the NSW Ambulance and so the fact that her evidence was truthful and credible was not sufficient to elevate her evidence to the degree of being persuasive. The appellant says that she was the only witness capable of giving evidence about “the material fact” (presumably about the pink copy of the Patient Record) and Ms Murphy did not have the capacity to give that evidence.
The respondent submits that the matters about which Ms Murphy gave evidence were clearly within her knowledge and experience.
The Arbitrator considered both the appellant’s evidence and that of Ms Murphy. The Arbitrator took into account the appellant’s submission that Ms Murphy’s role did not give her the capacity to provide evidence of whether the pink copy of the Patient Record was a document relied upon by the NSW Ambulance paramedics. He formed the view that Ms Murphy was familiar with the work undertaken by NSW Ambulance paramedics when attending a patient. He noted Ms Murphy’s responsibility for strategic management of the insurable risks in relation to employees and NSW Health volunteers. This included NSW Ambulance employees. He said those responsibilities would require her to have knowledge of the work that is done by those employed by NSW Health to provide ambulance services, including paramedics.
As submitted by the respondent, the Arbitrator had the opportunity to hear and observe Ms Murphy give evidence. Questions of the acceptance of evidence and the weight it is given are peculiarly matters within the province of the trial judge, unless it can be said that a finding was so against the weight of the evidence that some error must have been involved.[48]
[48] Rigby.
In Devries, the High Court considered the principle in the context of the primary judge having observed the witness giving oral testimony. In a joint judgment, Brennan, Gaudron and McHugh JJ said (citations omitted):
“If the trial judge’s finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused his (or her) advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’.”[49]
[49] Devries, [10].
The appellant has not pointed to any incontrovertible facts that were inconsistent with the evidence of Ms Murphy and does not assert that the Arbitrator palpably misused his advantage in his assessment of Ms Murphy’s credibility. The Arbitrator formed the view that Ms Murphy, as a Risk Manager for the respondent, was in a position to have knowledge of the responsibilities that fell upon the shoulders of NSW Ambulance paramedics. That conclusion was open to him. The Arbitrator also had the opportunity to observe the witness, and, contrary to the appellant’s submission that Ms Murphy’s evidence should not be accepted because she was an interested party, concluded that:
“The impression I formed of Ms Murphy when giving her oral evidence is that she did so thoughtfully and with circumspection, seeking to take care to provide accurate and truthful answers to the questions that were put to her. I consider she was a truthful witness. I accept the evidence she gave.”[50]
[50] Reasons, [29].
The Arbitrator’s reasons for accepting Ms Murphy’s evidence took into account the submissions of the appellant as to Ms Murphy’s capacity to give that evidence, the plausibility of her evidence, as well as her presentation. The Arbitrator’s conclusions were open to him. Applying the principles enunciated in Devries and Rigby, there is no basis upon which to disturb the Arbitrator’s finding and this ground of appeal fails.

Ground Eight

In this ground of appeal, the appellant asserts that the Arbitrator erred by failing to take into account her submission that consent was evidence of co-operation. The appellant says that the submission does not appear to be addressed at all by the Arbitrator. The appellant’s submission at arbitration was that the Order published in the Government Gazette amounted to “consent” between the Health Administration Corporation and St John, and that it could be inferred from that consent that there was co-operation between the two bodies.[51]
[51] T 8.5–13.1.
The Arbitrator dealt with the submissions in relation to the Order and concluded that it was “fanciful” to suggest that an inference could be drawn that it was evidence of co-operation between Health Administration Corporation and St John. The Arbitrator provided the following reasons for his conclusion:
“Mr Hart submitted that the Workers Compensation (Ambulance fees) Order 2015, published in the NSW Government Gazette on 12 June 2015, ‘provided evidence of an appropriate inference, favouring ‘co-operation’, because it is logically open that the volunteers in St John would bring patients to the care of the HAC’. In my view, no such inference can be drawn. The order was made by the Chief Executive Officer of the WorkCover Authority of NSW pursuant to s 63(1)(b) of the Act. The order prescribes the maximum amount of compensation for which an employer is liable under s 60(1) to pay a worker for any cost the worker has incurred for any ambulance service as a result of an injury a worker has received arising in or out of the course of employment. It is fanciful to suggest, in my view, that the making of the order provides a basis from which an inference can be made that St John and HAC co-operate with respect to the performance of ambulance services.”[52]
[52] Reasons, [49].
The Arbitrator clearly dealt with the appellant’s submission. The Arbitrator’s conclusion reached about the probative value of the Order was soundly based and discloses no error. In any event, if the Arbitrator did err in failing to deal specifically with the appellant’s reference to “consent”, that would not be sufficient to overturn the Arbitrator’s finding. Any such failure to deal with the submission could not have affected the outcome[53] because the argument is untenable in the face of the lack of probative value of the document itself.
[53] Trazivuk v Motor Accidents Authority of New South Wales [2010] NSWCA 287.
The appellant also complains under this ground that the Arbitrator failed to take into account his submission regarding the relationship between the Health Administration Corporation, the employees of the local health network and NSW Ambulance as set out in the Health Services Act. That relationship was not in issue, which is apparent from the Arbitrator’s preamble in his reasons as follows:
“The manner in which this case proceeded was on the basis that the respondent had determined, in accordance with s8A of the HealthAdministration Act, that her functions with respect to ambulance services were to be performed by [the Health Administration Corporation]. Certainly the respondent did not seek to put that in issue. Given that, I proceed on the basis that the functions of the respondent with respect to ambulance services were exercised by [the Health Administration Corporation].”[54]
[54] Reasons, [30].
It is also apparent that the Arbitrator considered the local area health network to be part of that relationship.[55]
[55] Reasons, [40].
There is no basis for the appellant’s complaint that the Arbitrator failed to deal with this submission, when the submission was made about a fact not in issue.
For all of the above reasons, Ground Eight of the appeal fails.

CONCLUSION

The appellant has not succeeded in identifying error on the part of the Arbitrator and the appeal fails. The Arbitrator’s determination is confirmed.

DECISION

The Arbitrator’s Certificate of Determination dated 13 September 2019 is confirmed.

Elizabeth Wood

DEPUTY PRESIDENT

19 March 2020