Depalo v Department of Ageing, Disability & Home Care
[2005] NSWWCCPD 35
•13 May 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Depalo v Department of Ageing, Disability & Home Care [2005] NSWWCCPD 35
APPELLANT: Savino Depalo
RESPONDENT: Department of Ageing, Disability & Home Care
INSURER:Treasury Managed Fund
FILE NUMBER: WCC14556-2003
DATE OF ARBITRATOR’S DECISION: 18 February 2004
DATE OF APPEAL DECISION: 13 May 2005
SUBJECT MATTER OF DECISION: No transcript of arbitration including record of ex tempore decision, and constructive failure to provide reasons.
PRESIDENTIAL MEMBER: President Justice Terry Sheahan
HEARING:On the papers
REPRESENTATION: Appellant: Mr Ross Hanrahan, Counsel instructed by Gerard Malouf & Partners, Solicitors
Respondent: Turks Legal, Solicitors
ORDERS MADE ON APPEAL: The decision of the Arbitrator, dated 18 February 2004 is revoked.
The matter is referred to the Registrar for allocation to another Arbitrator for conciliation, or determination if the parties are unable to come to a settlement.
BACKGROUND TO THE APPLICATION TO APPEAL
Mr Savino Depalo, the Appellant, claims to have injured his back whilst carrying a carpet-cleaning machine down a flight of stairs at his workplace, the Marsden Centre at Westmead Hospital. Mr Depalo claims that his left foot slipped off a step and in an effort to avoid falling he twisted his upper body when he reached out to support the weight of the machine. Mr Depalo alleges that the incident was witnessed by a fellow employee, Ms Anna Ramljak, who was assisting him in carrying the carpet-cleaning machine down the flight of stairs.
Mr Depalo’s Employer, the Department of Ageing, Disability & Home Care, the Respondent, denied Mr Depalo’s claim for compensation for permanent impairment, pain and suffering and medical expenses on the basis that Mr Depalo’s injury was not related to his employment.
On 28 August 2003 Mr Depalo filed an ‘Application to Resolve a Dispute’ in the Commission and this Application was registered on 11 September 2003. A Reply to the Application was filed by the Department’s insurer, the NSW Treasury Managed Fund on 21 October 2003.
A teleconference was conducted by the Arbitrator on 20 January 2004 and as the parties were unable to settle, the matter proceeded to a conciliation/arbitration hearing on 13 February 2004.
On 18 February 2004 a ‘Certificate of Determination’ was issued by the Commission. The ‘Statement of Reasons – Ex Tempore Orders’ (‘the Reasons’) attached to the Certificate of Determination noted that the parties were unable to come to an agreement at the conciliation/arbitration hearing.
The Arbitrator made an order “[f]inding in favour of the Respondent on the basis that the Applicant had not proved on the balance of probabilities that the injury the subject of these proceedings was suffered in the course of his employment.” The reasons for this order were given orally at the Arbitration hearing and according to the Certificate of Determination “[a] sound recording of the reasons given is available to the parties”.
The Registrar has advised me that a sound recording and transcript of the Arbitration hearing are not available, and, therefore, there is no record of the Arbitrator’s reasons for decision. I note that, although the Arbitrator’s file has been made available to me in this matter, there is no record of the reasons for decision in the file.
On 15 March 2004 Mr Depalo sought leave to appeal against the Arbitrator’s decision. Mr Depalo submits that the Arbitrator made a number of errors of fact, law and discretion.
Both parties have consented to the application for leave and the substantive appeal being determined on the papers. I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding a conference or formal hearing, and that this is the appropriate course in the circumstances (section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’)).
I am satisfied that the threshold requirements for leave to appeal under section 352 of the 1998 Act are met in this case. Leave to appeal is granted.
ISSUES ON APPEAL
The threshold issue in this appeal is whether I can conduct a review of the Arbitrator’s decision in this appeal when there is no transcript of the arbitration, and, therefore, no record of the reasons for the decision.
DISCUSSION AND FINDINGS
Can the Arbitrator’s decision be reviewed?
The review of an Arbitrator’s decision, where there is no transcript of the evidence given at the arbitration hearing, nor of reasons given ex tempore, and there are no written reasons, has been considered on a number of occasions (see Intercast & Forge Pty Ltd v Sahi [2004] NSW WCC PD 41; Zamovisa Pty Ltd v Kavanagh [2004] NSW WCC PD 53; Transfield Pty Limited v Bertinato [2004] NSW WCC PD 57; Fraternity Bowling Club v Sartor [2004] NSW WCC PD 79, and Thompson v Expamet Pty Limited [2005] NSW WCC PD 14 (“Thompson”)). The factors relevant to considering this issue are well established in these cases and need not be repeated in full in this appeal.
Although a Presidential Member has a discretion whether to proceed with a review of an Arbitrator’s decision in the absence of a transcript, the Court of Appeal has recognised that the “[a]bsence of transcript is not a passport to a new trial, or the equivalent of a fresh arbitration…” (per Giles JA in Wyong Shire Council v Paterson [2005] NSWCA 74).
For the reasons outlined below, I find that in the particular circumstances of this case the absence of a transcript is fatal to the conduct of a fair review of the decision of the Arbitrator in this particular case.
In Thompson Deputy President Fleming stated that:
“Where reasons are given ex tempore and there is a failure to make any record of those reasons, the reality is that the parties do not have a record of the reasons, the Commission does not have a record of the reasons, and there is no record of the reasons for the purpose of review by a Presidential Member. This amounts to a constructive failure to give reasons, as required by section 294 and Rule 73. It matters not whether this failure was occasioned by human error in the operation of the sound recording equipment, administrative failure or technical failure. Ultimately, it must be said that the Arbitrator erred in failing to provide reasons for decision.
The right to Presidential review ensures Arbitral decisions are fair, just and made according to law. Where no reasons for decision are given, the right of appeal to a Presidential Member may be, in effect, undermined. The ‘supervisory’ function of Presidential review, in the particular circumstances of the case may be denied; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247.”
One of Mr Depalo’s grounds of appeal is that the Arbitrator failed to provide adequate reasons for his decision. Mr Depalo has submitted that “the Arbitrator failed to state orally at the Hearing his reasons adequately so that the worker could understand the reasoning process by which the Arbitrator purported to find ‘that the Applicant had not proved’ that ‘the injury the subject of these proceedings was suffered in the course of his employment.’” In reply, the Respondent has submitted that “the Arbitrator is not responsible for the applicant worker’s failure to understand the reasoning process.”
In addition to the adequacy of the reasons, the content of the reasons is also in dispute in this appeal. Mr Depalo submits that “[t]he Arbitrator stated orally in an extempore decision given at the end of a face-to-face Arbitration that he was not satisfied ‘beyond reasonable doubt’ that the worker had sustained injury on 5 March, 2002, in the course of his employment on that day.” The Respondent however “does not concede that the Arbitrator stated orally in an extempore decision that ‘he was not satisfied beyond reasonable doubt’ that the worker had sustained injury on 5 March 2002.” The written order of the Arbitrator notes the onus as “balance of probabilities”.
Of significance to the determination of this appeal is that the Arbitrator had to consider the reliability of evidence given by Mr Depalo and an alleged witness to the injury.
Following the teleconference on 20 January 2004, the Arbitrator noted on the Commission’s file that: “The matter did not settle…There is an ongoing issue as to ‘injury’ and two, directly contradictory, statements have been received from the one witness on that issue.”
This notation appears to relate to two statements made by Ms Ramljak. In one statement, dated 15 January 2003 Ms Ramljak stated: “I, Anna Ramljak witnessed Sam Depalo injure himself on 5/3/02 at approx 11.30 am whilst I was helping him carry a carpet cleaning machine downstairs in Wenona.” In the other statement, dated 8 December 2003, Ms Ramljak stated: “I have been told that Sam has made a Workers Compensation claim for a back injury. I have also been told that Sam said I was helping him move a carpet cleaning machine down some stairs in the Wenona Unit, on Tuesday 5 March 2002. That is not true. I have been shown my work attendance records and I was not at work that day, Tuesday 5 March 2002.”
It appears from both Mr Depalo’s and the Respondent’s submissions that Mr Depalo gave oral evidence at the arbitration hearing. It is unclear from the file whether other witnesses, including Ms Ramljak, also gave oral evidence at the arbitration.
Where the adequacy and content of an Arbitrator’s reasons are in dispute in an appeal, and the Arbitrator has considered the reliability of evidence given by the worker, I cannot conduct a fair and proper review of the decision in the absence of a transcript of both the evidence given at the arbitration and the reasons given orally by the Arbitrator.
The absence of a transcript recording the reasons given ex tempore amounts to a constructive failure of the Arbitrator to provide reasons for his decision. Such a failure amounts to an error of law that justifies revoking the decision of the Arbitrator.
DECISION
The decision of the Arbitrator, dated 18 February 2004 is revoked. The matter is referred to the Registrar for allocation to another Arbitrator for conciliation, or determination if the parties are unable to come to a settlement.
COSTS
I make no order as to costs.
Justice Terry Sheahan
President
13 May 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUSTICE TERRY SHEAHAN, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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