Emeli Taeiloa v Forstaff Personnel

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
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CITATION:	Emeli Taeiloa v Forstaff Personnel [2003] NSWWCCPD 8
APPELLANT:	Emeli Taeiloa
RESPONDENT:	Forstaff Personnel
INSURER:	Allianz Australia Workers Compensation (NSW) Ltd
FILE NO:	WCC967-2002
DATE OF DECISION:	21 March, 2003
DATE OF COSTS DECISION:	24 July, 2003
PRESIDENTIAL MEMBER:	Deputy President Gary Byron
DECISION UNDER APPEAL:	Award for the Respondent
DATE OF DECISION UNDER APPEAL:	21 October, 2002
HEARING:	Telephone Conference, 25 February, 2003
REPRESENTATION:	Appellant: MBP Legal
Respondent: Goldbergs Lawyers
ORDERS MADE ON APPEAL:	The Appeal is not allowed. The decision appealed against is confirmed. No order is made as to costs.

THE APPEAL

On 5 November, 2002 Ms Emeli Taeiloa, the Applicant in this dispute (‘the Appellant’) lodged an appeal against the decision of the Commission constituted by an Arbitrator, that Forstaff Personnel (‘the Respondent’) is not liable for the Appellant’s claim for workers compensation. The decision was made by the Arbitrator on 21 October, 2002 and the Determination was issued on 22 October, 2002. The insurer is Allianz Australia Workers Compensation (NSW) Ltd (‘the Insurer’). Directions regarding the appeal against the decision of the Arbitrator were issued to the Appellant on 6 December, 2002 by the Deputy Registrar, by delegation of the Registrar. The Appellant’s Solicitor responded by letter of 10 December, 2002 in compliance with the Directions advising that service had been effected on the Respondent. However, the response to the appeal lodged by the Respondent with the Commission, was dated 8 January, 2003 and faxed on 10 January, 2003. It was not apparent by reference to the file whether the response lodged by the Respondent had been served on the Appellant. On 5 February, 2003 the Solicitors for both parties were contacted by email and confirmation was sought as to whether this had been done. In any event, the Solicitor for the Appellant was asked to provide further submissions on the Respondent’s response. At 3.27pm on the same day, the Solicitor for the Appellant provided by email a copy of the submission that had been lodged with the Commisson under the covering letter of 10 January, 2003. On 7 February, 2003 the Solicitor for the Respondent confirmed by telephone and by facsimile transmission that the Respondent’s submission was provided to the Appellant’s Solicitor on 8 January, 2003 and that a response to those submissions was received in a document dated 5 February, 2003.
By way of background, the Appellant lodged an Application to Resolve a Dispute (‘the Application’) in the Workers Compensation Commission (‘the Commission’) on 22 July, 2002. The Appellant claimed that she suffered a total incapacity for work as a consequence of an injury that arose out of and in the course of her employment with the Respondent, as a packer. She claimed that she suffered injuries to her back and her neck on 15 October, 2001 when she fell over backwards onto a pallet. The Appellant notified the Respondent of the injury on 16 November, 2001. The Appellant further claimed that on 7 April, 2002, because of her back injury, she fell forwards while trying to get out of a chair and fractured her ankle.
The Insurer made provisional weekly payments of compensation from 14 November, 2001 to 20 November, 2001 and from 21 January, 2002 to 19 June, 2002. On 5 June, 2002 the Insurer informed the Appellant that it denied liability for the claim for further weekly benefits and medical expenses. The Insurer ceased weekly compensation payments on 19 June, 2002. Further, on 22 June, 2002 the Appellant lodged a claim with the Insurer for medical expenses of $550.00 for an MRI scan. The claim was rejected by the Insurer, denying liability under this claim.
The dispute duly came before the Arbitrator who made the following decision on 21 October, 2002:
(1`)The Respondent is not liable for the applicant’s claim for weekly compensation pursuant to s37 of the Workers Compensation Act 1987, and
(2)The Respondent is not liable for the payment of the Applicant’s claim under s60 of the Workers Compensation Act 1987.
A determination in these terms was issued by the Commission on 22 October, 2003.
Arbitration proceedings in the Commission are sound recorded. Facilities and equipment have been obtained for use by each Arbitrator for this purpose. The Arbitrator in this matter had been supplied with sound recording equipment but unfortunately, did not cause the hearing to be recorded in accordance with the Commission’s Record of Proceedings Policy. Consequently, no compact disc or transcript is available. The Policy provides:
“Proceedings of the Commission are recorded during the Arbitration hearing phase of dispute resolution, where the parties have not reached settlement and the Arbitrator must determine the matter.
The Commission records proceedings by digital sound recording, enabling a compact disc to be produced of the proceedings for archival purposes.
The Commission will provide a copy of the compact disc of the proceedings to a party to the dispute upon request, at no cost.”
The conciliation phase that precedes the arbitration phase of the proceedings, is not recorded, as this phase is an informal exploration of the options for and possibilities of, settlement. On the other hand, the arbitration phase is a formal proceeding in which sworn or unsworn oral evidence may be taken and oral legal submissions on the issues in dispute may be made. This phase of the proceedings is recorded so that any oral evidence that is given and oral submissions that are made, are “on the record”. However, there is no statutory requirement to record the evidence given and the submissions made during the arbitration phase and consequently, the absence of a compact disc or transcript does not of itself constitute a ground of appeal. The Commission’s Record of Proceedings Policy is simply good and preferred practice in the interests of convenience and for avoiding the potential for unfairness.
For a further discussion on the failure to record proceedings see: Ian John Sheridan v David Anthony Clark trading as Freestlye Marine Sports [2003] NSW WCC PD3.

THE ISSUES IN DISPUTE

#The issues that were in dispute before the Arbitrator are outlined in the documents and may be summarised as follows:
(1) Whether the Applicant received an injury arising out of or in the course of her employment;
(2) whether the Applicant’s employment was a substantial contributing factor to her injury;
(3) whether the Applicant was totally or partially incapacitated for work as a result of her injuries;
(4) if she was totally incapacitated for what period was the Applicant totally incapacitated, and
(5) whether some of the Applicant’s medical and related expenses that were incurred as a result of her treatment, services or assistance, were reasonably necessary in connection with any compensable injury sustained.
The Arbitrator found for the Respondent and determined that the Respondent was not liable for payment of weekly compensation (after 25 February, 2002) nor for the payment of the expenses in relation to the MRI scan.

JURISDICTION TO HEAR THE APPEAL

#Section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the Act’) provides:
352 Appeal against decision of Commission constituted by Arbitrator
(1) A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commision as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(2) The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b)at least 20% of the amount awarded in the decision appealed against.
(3) If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.
(4) An appeal can only be made within 28 days after the making of the decision appealed against.
(5) An appeal under this section is to be by way of review of the decision appealed against.
(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.
(7) On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
(8) In this section, decision includes an award, interim award, order, determination, ruling and direction.
This is an appeal lodged by a party to a dispute in connection with a claim for compensation. The appeal against the decision of the Arbitrator was lodged on 5 November, 2002, that is, within 28 days after the making of the decision appealed against.

LEAVE TO APPEAL

There is no dispute that the amount of compensation in dispute between the parties and in issue on appeal is at least $5000, and there being no award made in favour of the Appellant, the whole of the amount claimed remains in issue. Section 352(2)(b) of the Act does not apply to preclude a grant of leave to appeal in this matter.
Leave to appeal was granted on 11 February, 2003 and directions were issued on the same date, with a view to submissions being made by the parties at a telephone conference, on a day and at a time to be arranged.

TELEPHONE CONFERENCE

A telephone conference was held on 25 February, 2003 in which the legal representatives of both parties were involved. At the conclusion of the conference it was agreed that if the leave to admit fresh evidence was to be refused, I should determine the matter on the papers and that in those circumstances, I could do so without holding any further conference or a formal hearing. On the other hand, it was agreed that if leave to admit fresh evidence was to be given, arrangements would be made for that to be done at a hearing before me at the Workers Compensation Commission. The Respondent requested written reasons if leave to admit fresh evidence was granted and it was agreed that this would be done. I have decided for the reasons set out below, not to grant leave for the admission of fresh evidence. I am satisfied pursuant to section 354(6) of the Act that sufficient information has been supplied to me in connection with these proceedings and I have decided to exercise my functions under the Act without holding any further conference or formal hearing. I am further satisfied, having regard to the nature, content and extent of written submissions provided by the parties, and the submissions made and discussion that took place at the telephone conference on 25 February, 2003, that there is no unfairness, injustice or disadvantage to either party by reason of the absence of a transcript of the arbitration proceedings that took place before the Arbitrator.

SUBMISSIONS

#The written submissions on appeal provided by the parties and the oral submissions made at the telephone conference may be summarised as follows.
Appellant’s written submissions
The Appellant’s written submissions were submitted in the first instance as an attachment the document ‘Appeal Against Decision of Arbitrator’, dated 5 November, 2002, supplemented by further submissions lodged by letter on 10 December, 2002.
The Appellant submitted that the evidence of her treating doctor, Dr. Lodin should have been preferred over the evidence of the qualifying doctor, Dr. Chase. The Appellant maintains that the Commission constituted by the Arbitrator made no allowance for the Appellant’s treating doctor’s opinion. She submitted that Dr. Lodin has seen her on numerous occasions and continues to supply WorkCover medical certificates certifying that she continues to suffer chronic back pain and remains unfit for work. It was further submitted that the Commission should not have made a medical diagnosis as noted in paragraphs 34 and 35, as the preferred doctor of the Respondent saw the Appellant in February, 2002 and had not had the opportunity of seeing the Appellant for 10 months. The Respondent had made no arrangements for the Appellant to be re-examined by Dr. Chase during that period, the report of 26 February was not current and therefore, could not be relied upon. The Appellant stated that in any event, if the Respondent on receiving the report of Dr. Chase considered that they were not liable to pay compensation, they should have terminated payments in February, 2002 but instead paid the Appellant until June, 2002.
The Appellant indicated initially that leave would be sought, and it was later sought, to serve a medical report from the Appellant’s treating specialist Dr. Giblin and to have this introduced as fresh evidence. The report was not to hand at the time of lodging the appeal (5 November, 2002) against the decision of the Arbitrator, but was requested on 29 October, 2002 and should be available “within the next four weeks”. In the document lodged under cover of the letter of 10 December, 2002, the Appellant’s Solicitor submitted that Dr. Giblin’s opinion was required as to whether she continues to remain incapacitated for work as a result of her injury. It was further stated that “Dr. Giblin has advised that he will need to examine our client for the purpose of this report. Due to his schedule and holidays, Dr. Giblin is unable to review our client until January, 2003.”
Finally, the Appellant’s Solicitor submitted that the Appellant will be required to give fresh evidence as to her condition and ongoing disabilities, on the basis that “The Arbitration hearing was not recorded and therefore a transcript cannot be relied upon. The Applicant did not give any evidence in chief and was only cross examined by the Respondent. As the Applicant was not given an opportunity to have her evidence heard this is a denial of natural justice.”
Respondent’s written submissions
The Respondent made submissions as to the findings of the Arbitrator in preferring the evidence of Dr. Chase over the evidence of Dr. Lodin. The Respondent submitted that the Arbitrator clearly analysed the reports of both doctors, set out the reasons why she preferred the opinion of Dr. Chase, and that these reasons clearly revealed her reasoning process in preferring the opinion of Dr. Chase, an occupational physician over that of the Appellant’s doctor who is a general practitioner. The Respondent submitted that the findings and reasoning of the Arbitrator were open, available and logically based on the reports and the evidence before her; that they were consistent with the evidence, and were formed on the basis of a considered decision by the Arbitrator. The Respondent filed a copy of and cited Xipolitas v Auburn United Pty Ltd 40590/91 a decision of the NSW Court of Appeal of 21 June, 1996, stating that the Court found that it was open to the trial judge to prefer the evidence of the Respondent’s medical witnesses and that any appeal which challenged those findings must fail, and further, provided there was evidence upon which the trial judge could base his findings of fact, those findings were not subject to review. The Respondent’s view is that the Arbitrator’s decision is not reviewable on this ground as the report of Dr,. Chase provided the evidence upon which the Arbitrator was able to base her findings of fact.
The Respondent made a detailed submission in relation to the application made by the Appellant to introduce fresh evidence in the form of a report by Dr. Giblin.
The Respondent submitted that President’s Direction number 6B of 2002 sets out the procedural requirements where a party is seeking to give fresh evidence or evidence in addition to or in substitution for evidence received (new evidence) in relation to the decision appealed against. A party must serve a copy of the new evidence on the other parties to the dispute when serving the Application for Leave to Appeal Against an Arbitrator’s Decision or the response to the Application. The Respondent stated that the party seeking to rely on new evidence must also file in the Commission and serve on the other parties, a statement attesting to the service of the new evidence on the other parties to the dispute; a brief outline of the new evidence and the reasons why it was not given in proceedings before the Arbitrator, and submissions as to why the new evidence should be admitted. It was submitted that neither the Appellant’s statements of grounds nor its submission contained any details of new evidence, any statement of its service, an outline of it, or reasons why it was not given in the proceedings before the Arbitrator, the documents being silent on all such matters. The Respondent further submitted that the Application to Resolve a Dispute stated on page 13 that a medical report of Dr. Lodin had been requested on 4 July, 2002. That report dated 23 August, 2002 was subsequently relied upon at the hearing before the Arbitrator. The Application to Resolve a Dispute did not attach a statement from the Appellant, nor did it indicate that a report from Dr. Matthew Giblin, who had been the Appellant’s treating specialist, would be relied upon in support of the Application made to the Commission. The Respondent duly filed a Reply raising the issues in dispute that are set out in the Arbitrator’s Reasons for Decision.
The Respondent stated that a teleconference took place on 23 September, 2002 and as the matter could not be resolved, it was set down for hearing on 4 October, 2002. No application was made on behalf of the Appellant to the Arbitrator during the teleconference, for an extension of time to obtain or serve a report from Dr. Giblin. The Arbitrator ruled at the teleconference that the Respondent would be limited in its case to reliance upon the report of Dr. Chase dated 26 February, 2002 and that the report of Dr. Mills and a series of reports from Dr. Giblin attached to the Respondent’s Reply, would not be considered. The Respondent referred to the contents of paragraph 15 at page 5 of the Arbitrator’s Reasons for Decision, in this regard. The Solicitor for the Respondent said that at the hearing, the Arbitrator put the question to the Appellant’s Solicitor, as to whether a report was to be obtained by the Appellant from Dr. Giblin. He said that the “response was in the negative”. He further submitted that this took place in circumstances where the Respondent submitted that it was significant that no report from Dr. Giblin was relied upon before the Arbitrator, when the Appellant could have obtained it.
The Respondent observed that there was no application for an adjournment and no attempt made by the Appellant to obtain a report from Dr. Giblin, when such opportunity existed. In the Respondent’s view it was not unreasonable that the Arbitrator could and did find at paragrah 38 at page 8 of the Reasons for Decision, that such omission was significant given that Dr. Giblin was the Appellant’s treating orthopaedic surgeon.
The Respondent submitted that the Commission has no evidence before it from the Appellent that a report from Dr. Giblin could not reasonably be obtained and tendered prior to or at the arbitration hearing, or indeed that Dr. Giblin’s opinion would support the Appellant’s application. Citing Harrison v Schipp [2002] NSWCA 78 on 21 June, 2002 the Respondent pointed to the following statement made by His Honour Justice Handley at paragraph 6:
“Fresh evidence, or new matter means evidence which could not have been discovered earlier by exercise of due diligence and which, if received, would probably lead to a different result.”
The Respondent submitted that a report could have been obtained by the Appellant prior to the hearing by the Arbitrator by the exercise of due diligence and in any event, there is no evidence that such a report would probably lead to a different result.

In terms of the submission by the Appellant that she should be allowed to give oral evidence in the appeal, as to her condition and ongoing disabilities, the Respondent stated that in informing herself, the Arbitrator gave leave at the hearing for “cross-examination” by way of questions from the Respondent’s representative, but also gave leave to the Appellant’s representative to ask the Appellant questions following “cross-examination”. The Appellant’s representative did in fact, question the Appellant following the cross-examination.
The Respondent’s position is that in the absence of a transcript, the granting of leave to appeal would place the President or other party determining any issues at a disadvantage to the Arbitrator who heard the evidence from the Appellant and saw her response to questions put to her. The submission went on to say:
“The Respondent also notes with regret that no transcript is available of the Arbitration proceedings. However, the Workers Compensation legislation makes no requirement for provision of a transcript or the means for recovery of the cost of a transcript.”
Finally, the Respondent submitted that the Appellant was given the opportunity to give evidence and there was no denial of natural justice.

Submissions at the telephone conference in the appeal

At the telephone conference held with me on 25 February, 2003 both parties were asked to first address the matter of Dr. Giblin’s report and then the application for the Appellant to give oral evidence in this appeal.
The Appellant’s submission was that the report from Dr. Giblin was not available at the time of the hearing before the Arbitrator for a number of reasons. This treating specialist’s report was the one that made the Appellant attend for an MRI scan, which was part of the original claim. It was further submitted that the original hearing came on too quickly and the report was not available and is still not available at the date of this telephone conference. However, the report forms part of the claim that the Appellant brought first of all in respect of the ongoing weekly compensation specifically, as well as section 60 expenses. The Appellant’s solicitor stated that the report of Dr. Giblin should be allowed to be brought in to evidence, given that it was not available at the time of the original arbitration.
The Respondent submitted that the original Application was filed on 12 July, 2002 and had annexed to it, a statement indicating the it was intended to rely on, but did not yet have, a report of Dr Lodin. There was no reference to any intention to obtain and rely upon a report from Dr. Giblin. The Repondent further submitted that the matter did not proceed until Dr. Lodin’s report was obtained and served. At the teleconference held with the Arbitrator the Respondent sought to rely on some certificates from Dr. Giblin but was limited by the Arbitrator to reliance on Dr. Chase’s evidence. At the same time, the Arbitrator asked the Appellant what was to be relied upon and it was indicated that it was intended to rely only upon the report from Dr. Lodin. The Respondent submitted that the Arbitrator specifically asked “whether there was anything from Dr. Giblin, and the response was ‘No’”.
Given the absence of a transcript of the proceedings before the Arbitrator, the following portion of the Respondent’s oral submission to me is quoted verbatim:
“We then attended the arbitration hearing, and during the course of the arbitration hearing, I indicated that I would ask that an inference be drawn from the fact that there was no report from Dr. Giblin. The Arbitrator, in fact, not only noted that, she ultimately commented on it. She, to my recollection – and I didn’t make notes because I was at that stage involved in the conference and I don’t have a written note of it, but I do have a recollection – asked whether there was any necessity to adjourn or whether the applicant wished to adjourn to obtain a report from Dr. Giblin, and she received a response in the negative. It was therefore, the basis of my submission that she could draw an inference that there was nothing from Dr. Giblin.
My understanding, and my friend hasn’t addressed this, is that section (sic) 6B requires specifically under the terms of the Commission’s rules that if there was fresh evidence to be sought to be relied upon, there must be a statement attesting to the service of the new evidence – that hasn’t happened; an outline of the nature of that evidence – that hasn’t happened. There are submissions as to why it should be submitted – I’d concede that – but the balance of the requirements don’t appear to have been complied with.
My understanding, and because I’m hamstrung in this, is that Dr. Giblin can provide a report within two weeks of a request for same, and this is now six months and we haven’t seen the report, in any event. So I’m at a loss as to how there could be any application granted based on those matters just for fairness and on the basis of the Commission’s own rules for any fresh evidence going forward from this time, particularly when you still haven’t seen the nature of what the evidence may be. Or compliance with what appears to be the direction from the President that says ‘must file’. That hasn’t been complied with.”
In response to this the solicitor for the Appellant stated the following:
“At the time of the telephone conference and ultimately the arbitrator’s hearing, the report of Dr. Giblin wasn’t available. I’m not going to make submissions as to why it wasn’t available, but there is no doubt that when we were at Oxford Street, the only report which we conceded was an updated report from Dr. Lodin, which didn’t take us any further and, quite rightly, we conceded that it probably shouldn’t be allowed, given that it was less than six months old and it really didn’t take us any further.
The applicant’s claim, which at that particular time should have had Dr. Giblin’s report - …”.
The Appellant’s representative said that would be surprised if the report could be obtained within two weeks, as put by the Respondent, to which the Respondent’s representative stated that on checking just before the telephone conference today, he was assured that a report would take seven to ten days to obtain, or within two to three weeks if it was necessary to see the Appellant and then prepare a report.
The Appellant’s representative stated that “the reality is that that report swings on our client’s fitness.” This was challenged by the Respondent on the basis that the Appellant does not know what would be in the report. This was conceded on the basis that one cannot read a report that is not yet available. The Respondent submitted that the absence of the report was a feature of the way in which the Appellant chose to “run her case” before the Arbitrator. In any event, it was submitted, there is nothing to show that there is likely to be evidence in support of the Appellant, let alone whether it should be admitted into evidence.
On the matter of the application for the Appellant to give oral evidence in the appeal the following submissions were made:
Appellant: “The bottom line is this: that at that hearing the applicant had a number of submissions to make. First of all, the applicant wanted to tell her side of the story in respect of the ankle injury; second of all, she wanted to tell her side of the story in respect of what actually happened to her as to whether, in fact, this was an injury that occurred in the course of her employment and whether the injury was a substantial contributing factor.
At that hearing, the reality is that she was not given that opportunity. The arbitrator at the time was more concerned as to whether, in fact, the evidence that she was going to give was based on the medical reports available. She was not given that opportunity, in my view, and she should be given that opportunity, and not to be given that opportunity, and I think the quote from the Arbitrator at the time was ‘We only have an hour and this is not going to be recorded’ did not give the applicant sufficient time to give that evidence, and in my view, she should be given that opportunity, and not to be given it is just in my view, not proper justice to this applicant. Michael Styles (the Solicitor for the Respondent) and myself were both there at the time. The only questions that this person was asked were some questions to her by the Respondent, and I think even the Arbitrator may have asked her one or two questions but that I can’t remember.”
Respondent: “These proceedings as constituted are not similar to a court of law where at this stage all the Arbitrators are saying, ‘We are hearing evidence-in-chief, cross-examination, re-examination’. Because of the informal nature, my understanding, and it’s consistent with the process adopted by this Commission, is that the Arbitrators are attempting to inform themselves.
This Arbitrator had read all the documentation, indicated in commencing that having read the documentation there was an onus the Respondent had in relation to the way we had raised the issues in our reply. She asked me to address those issues, and I said ‘Well, before I address those issues I would seek some leave to ask the Applicant one or two questions’. She asked my opponent whether he had any objection to that, and he said ‘No’. I asked some questions in relation to some issues of the Applicant. At the conclusion of that the Arbitrator asked a question or two, and she then asked my friend whether he had anything that he wished to ask the Applicant. At that stage he said ‘No’.
That’s as I have indicated in ground 3 of my written submissions. It was not a matter where she was sworn in and gave evidence and she was then cross-examined. It was a matter whereby it took the nature of her informing herself.
However, it’s inaccurate and not a fair representation of the Arbitrator’s procedure to indicate that the applicant wasn’t given an opportunity to give her side of the case because at the conclusion of the questions I had leave to ask, and it was again put, ‘Is there anything you wish to ask the applicant?’ to which my friend replied, ‘No’. He may have, in fact, asked her one or two matters. (At this point Mr. Gould, the Solicitor for the Appellant stated that his questions were only in clarification of the questions already put to the Appellant). The Respondent’s Solicitor then went on to say: “That’s right. But you didn’t seek to take her through it. That was still the opportunity that was given to you at the time. It wasn’t a matter that you were denied the opportunity of putting anything to her or to the Arbitrator, and it seemed to me that the Arbitrator obviously had read all the documentation and then, having heard the line of questioning that I adopted, then gave you the opportunity, as it were, to fix it up or address any matters that you particularly considered that were relevant at the time. So to say that she was denied the opportunity of presenting a case is, in my view, a misrepresentation.”
Appellant: ”The reality is this: the only evidence that this person gave was based on a report, and the evidence that she gave was based on the evidence put before the commission which, in my view, clearly was inaccurate but basically because the medical report of Dr. Lodin was just clearly not believed, and the reality is that Dr. Lodin’s report, who is the treating doctor…that the Respondent’s case and the Commission’s case clearly did not entitle this or allow this Applicant when we were at that conference to give her evidence properly and, in my view, should have been allowed to do so”. (At this point the Solicitor for the Respondent reiterated that the hearing before the Arbitrator did not take the form of a court of law and that the Arbitrator had made her function plain. Having done that, he submitted, she also indicated that the Solicitors had an opportunity to ask questions of the Appellant.
The parties where then asked if they wished to make further submissions. The Appellant conceded that the latest and updated report of Dr. Lodin is six months old and it really didn’t take the matter any further. The report of Dr. Giblin is still not available and in the circumstances, the matter could not be taken further at this time. The Respondent made the point that this was a departure from what occurred before the Arbitrator when the Appellant was quite content to rely upon Dr. Lodin and strongly urged that it be preferred over the report from Dr. Chase.
The Respondent submitted that the Arbitrator had clearly analysed the reports before her and preferred the opinion of Dr. Chase over that of Dr. Lodin for the reasons stated. The Respondent cited and provided a copy of Xipolitas v Auburn United Pty Ltd (91040590) decided in the Supreme Court of New South Wales Court of Appeal on 21 June, 1966. This was an appeal against the decision of the Compensation Court regarding a finding of fact in relation to conflicting medical opinions. The Respondent said that this was authority for the Arbitrator to be entitled to prefer one medical opinion over another. He said “It’s open to a person in her position to prefer the evidence of one witness over the other. She had, as it were, those documentations before her and it’s clear that she analysed them and drew conclusions based on them”.
In relation to the claim for $550 for the MRI scan the Appellant submitted that it should be allowed. Whether in fact the MRI scan as a diagnostic tool is reasonable in the circumstances, the Appellant’s Solicitor noted that he is not a qualified orthopaedic specialist and could not say. He submitted that his client is not a medically trained person and did what she was told to do by her treating specialist. It was conceded that the MRI scan probably took the matter no further, but the Appellant was told to have it by her doctor and that makes the claim reasonable in the circumstances. The Respondent submitted that this was not an appropriate investigative tool given what had already been shown on CT scans and “…more to the point, that appears to have been accepted on balance”.
The Respondent concluded by submitting that choices were made by the Appellant and her representatives as to the way in which her case should be conducted. This included the nature of the evidence including the medical evidence that was to be produced. The Appellant did not seek an adjournment for the purpose of obtaining the medical report and at no time prior to the matter being heard by the Arbitratotr was it indicated that “…they were uncomfortable or would require further evidence”. The Respondent further submitted that there was no unfairness or denial of natural justice to the Appellant and that the Arbitrator’s considered and reasoned decision should be adopted.

DECISION

#The telephone conference with the representatives of the parties that took place on 25 February, 2003 was most helpful, particularly in the absence of a transcript of the proceedings before the Arbitrator. While the transcript should have been available, it is clear that there is no disagreement of substance as to what relevantly occurred in those proceedings.

Fresh evidence

The application for fresh evidence sought to be placed before the Commission in this appeal relates to a request to admit into evidence a medical report from Dr. Giblin, the Appellant’s treating specialist. The Appellant’s Solicitor has further submitted that the Appellant was prevented from giving evidence before the Arbitrator; that this amounted to a denial of natural justice, and that she should be permitted to give fresh and/or additional, oral evidence in the appeal.
Section 352(6) of the Act provides:
(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.
The language of section 352(6) clearly indicates that fresh evidence or evidence in addition to or in substitution of the evidence that was presented to and before the Arbitrator, may not be admitted as of right. Leave may be granted by the Commission but there must be a compelling reason for this to be done.
The general nature of fresh evidence is well established. The Respondent referred to the principle by reference to the statement of Handley J. in Harrison v Schipp [2002] NSWCA 78 at paragraph 6, (although that case dealt with amongst other issues, the question of reinstatement of proceedings before a court). He said:
“Fresh evidence or new matter means evidence which could not have been discovered earlier by the exercise of due diligence, and which, if received, would probably lead to a different result.”
In the same case Giles J. noted that under section 75A of the Supreme Court Act, further evidence is not received in that Court except on special grounds (s75A(8)), save where it is evidence concerning matters occurring after the trial (s 75A(9)). He went on to say:
“The jurisprudence collected concerning special grounds generally calls for three conditions to be satisfied, that the evidence could not have been obtained by reasonable diligence for use at the trial; that the evidence is credible, and that the evidence is such that there is a high degree of probability that there would be a different result (for example, Akins v National Australia Bank (1994) 34 NSWLR 155 at 160). The conditions are, however, only guides, and special grounds can be made out in other circumstances (Commonwealth Bank of Australia v Quade; DCJ v VAJ (No. 1)). Where special grounds need not be shown the guidance is less, but the public interest in the finality of litigation is of significance (Doherty v Liverpool District Hospital (1991) 22 NSWLR 284.”
The three conditions specified by Giles J. reflect the tests that have emerged at common law for the introduction of fresh evidence in appellate proceedings before the courts, generally. The first test is whether or not the new or different evidence sought to be admitted in the appeal proceedings, was available at the original proceedings or could have been discovered at that time, with reasonable diligence on the part of the party seeking to introduce it. The second test is that the evidence must be of such probative value that it is probable that it would change the outcome of the case (Wollongong Corporation v Cowan (1955) 93 CLR 435; McCann v Parsons (1954) 93 CLR 418, and Orr v Holmes (1948) 76 CLR 632). As Giles J. observed in Harrison v Schipp the public interest in the finality of litigation is of significance. This is, as I have said, consistent with the tests established at common law, for the admission of new or different evidence in appeal proceedings in the courts generally, as well as with the requirement that successful parties should be able to rely upon the outcome of litigation. Moreover, these tests are relevant to the fundamental requirement for fairness and justice in proceedings, including in my view, this appeal. Notwithstanding their relevance, the tests developed by the common law are subject to statutory construction, and the subject matter of the original proceedings is a critical factor in consideration of the exercise of the discretion to admit fresh evidence (CDJ v VAJ [1998] HCA 67 at par 106). This was discussed in Ross v Zurich Workers Compensation Insurance [2002] NSW WCC PD 7 in which Deputy President Fleming said:
“The principles developed by the common lawfor appellate court review are relevant, but not determinative of the exercise of discretion to admit fresh evidence pursuant to the statutory right of appeal under Section 352(6) of the Act. The factors relevant to the exercise of this particular discretion must be determined as a matter of statutory construction (CDJ v VAJ [1998] HCA 67)”.
The Workers Compensation Act 1987 (“the 1987 Act”), and the Workplace Injury Management and Workers Compensation Act 1998 (“the Act”) provide a statutory scheme for the resolution of workers compensation disputes. The intention of the Legislature is to provide a fair and expeditious system for resolving such disputes. The statutory objectives of the Commission are set out in section 367 of the Act. Early and timely disclosure of evidence and information regarding the dispute is a fundamental element in the system and is embedded in the Interim Workers Compensation Commission Rules 2001(“the Rules”). The Rules provide that an Applicant must file all relevant evidence at the time of making an application to the Commission to resolve a dispute; that a Respondent must do the same in filing a response to that application, but that the parties may identify that evidence that is not then available but which will be submitted subsequently (see Rules 16 and 27). The parties of course, must have an opportunity to present their evidence, in this statutory context.

Particular requirements are set out in Rule 36 that make provision in relation to oral evidence that is to be given by a party or another witness. Rule 36 provides:
36 Calling of witnesses
(1) A party that proposes to call a witness to provide oral evidence must include the name of that witness and a signed written statement by that witness:
(a)if the party is the applicant – with the application for dispute resolution, or
(b)if the party is the respondent – with the reply by the respondent to the Registrar’s notice of registration of the application for dispute resolution in accordance with rule 26, or
(c)if the party is a joined party – with the reply by the party to the Registrar in accordance with Rule 29(7).
(2) A party may call a witness to give evidence where a statement has not been filed in accordance with subrule (1) only with leave of the Commission.
(3) The Commission cannot grant that leave unless satisfied that admission of the evidence would prevent a substantial injustice to the party.
(4) An application for leave under this rule can only be made if the party lodges a written and signed statement setting out the evidence of the witness.
(5) This rule does not prevent a witness being summonsed in circumstances where the person refused to provide a written and signed statement.
Section 352(7) of the Act provides that on appeal to a Presidential Member from a decision of an Arbitrator, the decision may be confirmed or may be revoked and a new decision may be made in its place. In Ross v Zurich Workers Compensation Insurance, a decision on appeal in the Workers Compensation Commission, to which I have previously referred, a consideration of the question of admission of fresh evidence on appeal before the Commission constituted by a Presidential Member is discussed. In that matter, Deputy President Fleming said:
“Exercise of the discretion to admit ‘fresh evidence’ on appeal to a Presidential Member is one mechanism for ensuring the fairness and lawfulness of Arbitrators’ decisions, not otherwise amenable to review. Where fresh evidence is proof of an injustice to a party in the determination of the original proceedings, then the case for its admission is obviously strong. However, clearly it is not the intention of the legislature that the review of a decision by an Arbitrator effectively becomes a full second hearing of the matter.
Appeal to a Presidential Member is concerned with claimed error, of law or fact, not with the hearing of evidence and determination of the matter at first instance. A Presidential Member has a specific and limited role in the review of a decision of the Commission constituted by an Arbitrator. It is not an ‘appeal’ in the strict sense, as the Commission can receive further evidence. Similarly it is not a ‘rehearing’ of the matter where the Commission is re-exercising the power of the Arbitrator at first instance by hearing the matter ‘de novo’ and coming to a fresh decision based on all the evidence available at that later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2002] HCA 47 31 August 2000; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The ‘review’ is by way of rehearing where the powers of the Commission to confirm, revoke or substitute a new decision are exercisable only where it can be demonstrated that the original decision of the Arbitrator is affected by ‘some legal, factual or discretionary error’ (Allesh v Maunz [2002] HCA 40 (30 August 2000)).
To allow appeals against the decisions of Arbitrators to become, in effect, hearings ‘de novo’ would be to undermine the intention of the legislation and the system of simple, fair and expeditious resolution of worker’s compensation dispute that it creates. Given the statutory scheme, and the practices and procedures of the Commission, it is likely that only in demonstrably exceptional circumstances will the demands of justice in the instant case require the Commission, on review of an Arbitrator’s decision, to hear fresh evidence by way of previously unheard evidence of the Applicant worker. The same applies to the making of findings of ‘credit’ that should be made, if at all, at first instance. Decision-makers should in any event always be cautious in relying on findings of credit rather than evidence of the facts necessary to determine a lawful entitlement in the instant case (see comments of Kirby J in State Rail Authority v Earthline Constructions Pty Limited (in liquidation) (1999) 160 ALR 588…”
There would appear to be no sound basis to grant leave to admit fresh evidence or evidence in addition to or in substitution for the evidence received, in relation to the decision appealed against, pursuant to section 352(6) of the Act.
The Application to Resolve a Dispute that was lodged with the Commission was not accompanied by a statement from Dr. Giblin, nor by a statement made by the Appellant. The Application did not indicate that a report from Dr. Giblin was to be obtained and relied upon in the proceedings before the Arbitrator. It was stated that a report from Dr. Lodin would be relied upon but that statement was not available at time of lodging the Application. It was received subsequently, and was in fact, relied upon in the proceedings.
The report from Dr. Giblin was not available at the time of lodging the Application and according to the Appellant’s Solicitor, was requested on 29 October, 2002, some eight days after the date of the decision of the Arbitrator. There is no dispute that a request was not made at the teleconference on 23 September, 2002 for an extension of time to secure the report from Dr. Giblin nor was there any application for an adjournment of the hearing to enable the report to be obtained. The Appellant’s Solicitor declined to make submissions in the appeal, as to the reason that the report of Dr. Giblin was not available in the proceedings before the Arbitrator. The report from Dr. Giblin had not been obtained at the time of lodging this appeal nor was it available on 25 February, 2003, being the date of the teleconference with me, in relation to the appeal. The Solicitor for the Respondent claimed that on checking with Dr. Giblin’s office immediately before the commencement of the teleconference with me that he had been assured that a report could be provided within two to three weeks from the date of a request being made. The Appellant’s Solicitor expressed surprise at this disclosure but did not dispute it.
The Arbitrator stated in her Reasons for Decision at paragraph 38 “I find it significant that there is no report from Dr. Giblin, the orthopaedic surgeon consulted by the applicant.” The Solicitor for the Respondent said that it was his recollection that the Arbitrator specifically asked the Appellant whether an adjournment was required in order to obtain a report from Dr. Giblin, and the response was in the negative. This was not disputed by the Solicitor for the Appellant.
Neither the Appellant nor the Respondent could indicate whether the contents of the report from Dr. Giblin would be of any practical assistance to the Appellant. That would not be known until the report was obtained. In these circumstances, it cannot be said that this particular ‘fresh evidence’, if admitted, would affect in any way, let alone change, the decision made by the Arbitrator.
It is clear from the evidence and submissions before me that the report of Dr. Giblin could have been obtained in time for the proceedings before the Arbitrator; that no attempt was made to obtain the report until after the decision had been handed down by the Arbitrator; that the Arbitrator specifically asked the Appellant whether an adjournment was to be requested in order to obtain the report for the purpose of the proceedings and the response was in the negative, and at the time of the proceedings before the Arbitrator, the Appellant did not intend to, and did not in fact, rely on any report from Dr. Giblin, in those proceedings.
It is noted in any event, that the Appellant did not comply with Rule 50 of the Interim Workers Compensation Commission Rules 2001 (“the Rules”) and President’s Direction number 6B of 2002 in seeking to introduce fresh evidence on appeal.
Having regard to the foregoing, leave is not granted for the introduction of fresh evidence, being a report from Dr. Giblin, in this appeal.
In relation to the application by the Appellant to give oral evidence on appeal it is evident that no formal oral evidence was given in the proceedings before the Arbitrator. There is no dispute that a series of questions was put to the Appellant by both Solicitors, with the permission of the Arbitrator. It is unfortunate that there is no transcript of the proceedings available that would make possible a review of the precise nature and content of the questions asked and the answers given. However, it is clear that opportunities were given for both Solicitors to ask questions of the Appellant, and that application was not made by the Appellant to give formal evidence, sworn or otherwise. I am satisfied that the Arbitrator did not refuse to allow the Appellant to give further evidence once the opportunity for this to occur was opened up. Notwithstanding what was put to me I am satisfied that no such request was made to the Arbitrator, even though comments may have been made to the effect that time was limited. Moreover, there is no indication in any of the documents before me, that there was any intention for the Appellant to say anything herself, until the Respondent sought and was granted leave to ask her some questions.
Section 354(1) of the Act provides that proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits. Subsection (2) provides that the Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits. Subsection (3) provides that the Commission is to act according to equity, good conscience and the substantial merits of the case without regard to legal technicalities or legal forms. On what is before me I am satisfied that the proceedings were conducted in accordance with these provisions and that no request for the Appellant to give formal or further evidence was made or pursued.
I am satisfied that there is no evidence of a denial of natural justice in the proceedings before the Arbitrator. It is clear that the Appellant’s case was conducted as intended by her and her representative, and that there was no lack of opportunity to bring any evidence thought to be relevant and necessary, before the Arbitrator, subject to the relevant provisions of the Act, the Rules and the President’s Directions. Moreover, having regard to what is set out before as to the admission of fresh evidence, including regard to statutory requirements, I am satisfied that there is no basis for the admission of fresh evidence in the form of oral evidence by the Appellant, to be allowed in this appeal. Leave therefore, is not granted.

Decision of the Arbitrator

The following documents were in evidence before the Arbitrator and were taken into account in the proceedings:
·A medical report dated 23 August, 2002 from Dr. M. Lodin, the Appellant’s treating doctor;
·WorkCover medical certificate;
·A letter dated 5 June, 2002 from Allianz Australia Workers Compensation (NSW) Limited, to the Appellant.
·A medical report dated 26 February, 2002 from Dr. R. Chase, the Respondent’s occupational physician specialist;
·Compensation claim dated 16 November, 2001;
·Employer’s report of injury form dated 22 November, 2001;
·Australian Injury Management Pty. Ltd status report dated 15 February, 2002;
·NSW Workers Compensation medical certificates;
·Ultra scan radiology report dated 16 October, 2001.
The medical reports of Dr. Lodin and Dr. Chase were closely considered by the Arbitrator and were the subject of submissions by both parties, in this appeal. The Arbitrator gave more weight to the report of Dr. Chase and in this regard, said:
“In comparing the reports of Dr Lodin and Dr. Chase I prefer the evidence of Dr Chase, as a specialist and as a doctor who has turned his mind specifically to the question of whether or not work was a substantial contributing factor to the Applicant’s initial injury and to her current fitness for work.
Dr. Lodin does not express an opinion about whether or not the Applicant’s work is a substantial contributing factor to her inability to work. His report more chronicles his treatment of the applicant and investigative procedures than links work and capacity for work.
I find it significant that there is no report from Dr. Giblin, the orthopaedic surgeon consulted by the Applicant.”
The Arbitrator also observed that both reports reveal that the Appellant is not in a good, general state of health and that that there are degenerative changes in her spine.
Having closely examined the evidence that was before the Arbitrator I consider that it was open to her to make the findings and to come to the conclusions stated by her, in this matter. Given the Appellant’s state of health and the degenerative and chronic nature of her spinal condition, I attach no particular significance to the date of Dr. Chase’ report. The Arbitrator’s comment as to the absence of a report from Dr. Giblin is not unwarranted, particularly as she asked the Appellant if an adjournment was required to enable her to obtain such a report and a negative response was forthcoming. According to the evidence before me Dr Giblin had previously examined the Appellant, but no report was filed with or foreshadowed in the Application to Resolve a Dispute lodged in the Commission. Consequently it is reasonable to conclude that at the time, there was no intention to obtain and rely upon a report from Dr. Giblin, in the proceedings before the Arbitrator. Indeed, according to the Appellant, the request for a report was not made to Dr. Giblin until after the Arbitrator had handed down her decision.
The Arbitrator agreed with the Appellant that the MRI may have been an appropriate investigative tool for good patient care, but concluded that it was not reasonably necessary that it be carried out as a result of the injury sustained in the workplace on 15 October, 2001. It was noted that Dr. Chase stated that it was not necessary, as the CT scan previously carried out, already revealed the condition and degenerative problems, and that no other problems detectable only on an MRI, were suggested as a basis for this to be done. Both parties agreed that the MRI did not add anything to the doctor’s findings.
A review of the other evidence that was available to the Arbitrator does not militate against her findings and conclusions.
Having regard to the evidence before her and the weight of the evidence, I am satisfied that the findings made and the conclusions reached by the Arbitrator, were open to her.
Accordingly, the appeal is not allowed. The decision appealed against is confirmed.

COSTS

No application for costs has been made by either party. I make no order as to costs.

Gary Byron
Deputy President

21 March, 2003

I certify that that this is a true and accurate record of the reasons for decision of Deputy President Gary Byron, Workers Compensation Commission

Registrar

Date:

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
__________________________________________________________________

CITATION:	Emeli Taeiloa v Forstaff Personnel [2003] NSWWCCPD 8C
APPELLANT:	Emeli Taeiloa
RESPONDENT:	Forstaff Personnel
INSURER:	Allianz Australia Workers Compensation (NSW) Ltd
FILE NO:	WCC967-2002
DATE OF DECISION ON APPEAL:	21 March, 2003
DATE OF DECISION ON APPLICATION FOR COSTS:	24 July, 2003
PRESIDENTIAL MEMBER:	Deputy President Gary Byron
DETERMINATION OF APPLICATION FOR COSTS:	Application for order for costs determined on the papers following written submissions by the parties.
REPRESENTATION:	Appellant: MBP Legal
Respondent: Goldbergs Lawyers
ORDERS MADE:	The application for an order for costs against the Appellant is refused. No order is made as to costs.

THE APPEAL

On 5 November, 2002 Ms Emeli Taeiloa, (“the Appellant Worker”) lodged an appeal against the decision of the Commission constituted by an Arbitrator, that Forstaff Personnel (“the Respondent Employer”) is not liable for payment of workers compensation to the Appellant. The decision was made by the Arbitrator on 21 October, 2002 and the Certificate of Determination was issued on 22 October, 2002. The Insurer is Allianz Australia Workers Compensation (NSW) Ltd (“the Insurer”).

The appeal was determined by me on 21 March, 2003. Having regard to the evidence and the weight of the evidence before the Arbitrator, I was satisfied that the findings made and the conclusions reached by her, were open to her, and that no error of law, fact or discretion had been made. Accordingly, the decision appealed against was confirmed. An application for costs was not made by either party. No order was made by me on that date, as to the costs of the appeal.

An application has now been made by the Respondent Employer for an order for costs.

SUBMISSIONS ON THE APPLICATION FOR COSTS

The Respondent Employer made submissions on costs, dated 23 April, 2003 and 11 July, 2003. The Appellant Worker lodged a submission under cover of a letter dated 23 June, 2003.

The Respondent Employer’s submissions of 23 April, 2003 may be summarized as follows:
§The Respondent Employer is of the view that the Appellant Worker should pay the Respondent Employer’s costs of the appeal, as the appeal was not allowed and at the time, no order was made in relation to costs.
§While the Commission is precluded by the statute from making a costs order in favour of the Appellant Worker if she is unsuccessful on appeal, it follows that the Appellant Worker can be ordered to pay the costs of an unsuccessful appeal.
§None of the grounds upon which the Appellant Worker appealed, were upheld on appeal. These were the introduction of fresh evidence, and leave for the Appellant Worker to give oral evidence on appeal when no formal oral evidence was given before the Arbitrator (there being no denial of natural justice before the Arbitrator and no lack of opportunity to bring relevant evidence in the arbitral proceedings). The Appellant Worker noted that the arbitral proceedings were not recorded, but the Commission was satisfied on appeal, that there was no unfairness, injustice or disadvantage to either party, by reason of the absence of a transcript.
§Common law principles ought to be applied and the costs should follow the result.
§Costs should be used by the Commission in order to control its processes. By withholding costs or by the award of costs, it may discourage unnecessary proceedings and appeals, which are likely to fail, ultimately. In the alternative, the Appellant Worker’s “appeal” was frivolous or vexatious, pursuant to section 341(4) of the Workplace Injury Management and Workers Compensation Act 1998 (“the 1998 Act”). Accordingly, the Appellant Worker should pay the costs of appeal.
§The Appellant Worker’s grounds of appeal effectively arise out of a retrospective “regretting the tactics employed by her in the original proceedings.” Whilst the Appellant Worker may wish to question the strategy she adopted “in light of the decision”, the Respondent Employer should not be punished by having to pay its own costs of defending the appeal.

The Appellant Worker’s substantive submissions, dated 23 June, 2003, in response to the Respondent Employer’s submissions, may be summarized, as I read them, as follows:
§No order was made for costs when the appeal was not allowed by the Commission on 21 March, 2003.
§As the matter of costs could have been raised by the Respondent Employer and was not made “at the time of the application for appeal”, it is the Appellant Worker’s view that she should not pay the Respondent Employer’s costs. The Respondent Employer otherwise, had ample opportunity to apply for costs and did not do so.
§It is agreed (with the submission of the Respondent Employer) that if an Appellant Worker is unsuccessful on appeal, the Appellant Worker should not be allowed the costs of the appeal.
§The Appellant Worker is not seeking an order for her costs of the appeal.
§The common law principles do not apply, as the 1998 Act makes provision for costs in the Workers Compensation Commission.
§The claim was not vexatious or frivolous and the Appellant Worker should not be ordered to pay the costs of the appeal. The Respondent Employer is “not punished by payment of his own costs in fact it is relieved from paying the costs of the Applicant.”

The Respondent Employer’s further, brief submissions dated 11 July, 2003, lodged in response to the Appellant Worker’s submissions, may be summarized as follows:
§The application for costs relates only to the costs of the appeal.
§The grounds of appeal were not made out in the appeal, as outlined in paragraphs 9 to 11 of the (Respondent Employer’s) submission of 23 April, 2003.
§The Respondent Employer did not assert its entitlement to make submissions as to costs at the conclusion of the hearing before the Deputy President “as no submission on costs was invited and pending such decision an application was in our view premature.”
§The Respondent Employer is entitled to costs of the appeal, in all of the circumstances.

FINDINGS AND ORDERS IN THE APPEAL

The findings in the appeal may be summarized as follows:
§Leave to appeal was granted.
§The appeal was determined “on the papers” pursuant to section 354(6) of the 1998 Act.
§There was no unfairness, injustice or disadvantage to either party by reason of the absence of a transcript of the arbitration proceedings that took place before the Arbitrator.
§The application to admit fresh evidence in the form of a medical report from Dr. Giblin was refused. It was noted that the request for a report was not made to Dr. Giblin until after the Arbitrator had handed down her decision; that the offer by the Arbitrator to adjourn the matter so that a report from Dr. Giblin could be obtained was declined, and in any event, there was no indication that it was intended to submit and rely upon that evidence, in the proceedings before the Arbitrator.
§The application to admit fresh evidence in the form of oral evidence by the Appellant Worker was refused. No formal, oral evidence was given in the proceedings before the Arbitrator. A series of questions was put to her by each of the legal representatives and it is clear that each of them was afforded ample opportunity to ask questions of the Appellant. No application was made by the Appellant Worker to give oral evidence, formal or otherwise.
§There was no denial of natural justice. It was clear that the Appellant Worker’s case was conducted as intended by her and her legal representative, and there was no lack of opportunity to bring any evidence thought to be relevant and necessary, before the Arbitrator, subject to the relevant provisions of the 1998 Act, the Interim Workers Compensation Commission Rules 2001 (“the Rules”), and the President’s Directions.
§Having regard to the evidence before the Arbitrator, and the weight of the evidence, the findings made and the conclusions reached by her were open to her, and no error of law, fact or discretion was made by the Arbitrator.

DECISION

Section 341 of the 1998 Act provides that Division 3 of Part 8 of Chapter 7 of that Act applies to costs payable by a party in or in relation to, a “claim” for compensation. Subsection (2) of that section provides that the Commission has full power to determine by whom, to whom and to what extent costs are to be paid. However, subsection (4) provides that the Commission may not order the payment of costs by a claimant unless the Commission is satisfied that the “claim” was frivolous or vexatious, fraudulent or made without proper justification. Subsection (5) empowers the Commission to order the claimant to pay the costs relating to any part of a “claim” that is frivolous or vexatious, fraudulent or made without proper justification.

“Claim” is defined in section 4(1) of the 1998 Act thus: “Claim means a claim for compensation or work injury damages that a person has made or is entitled to make.”

Section 345(1) of the 1998 Act provides that on appeal from the Commission constituted by an Arbitrator to the Commission constituted by a Presidential member, if the Appellant is the claimant and is unsuccessful on the appeal, the Commission must not make an order for the payment of the Appellant’s costs on the appeal by any other party to the appeal.

Having regard to the relevant statutory provisions, I am unable to agree with the Respondent Employer’s submission that, while the Commission is precluded from making a costs order in favour of the Appellant Worker if the Appellant Worker is unsuccessful on appeal, it then follows that the Appellant Worker can be ordered to pay the costs of an unsuccessful appeal. That position is neither expressly stated nor implied in the Act.

Costs do not follow the event in relation to workers compensation claims in the Commission. They are at the discretion of the Commission and are subject to the limitations imposed by the legislation (and they are regulated - see section 347 of the 1998 Act).

While it is open to the Respondent Employer to make this application for costs, an order for costs against the claimant, who is the Appellant Worker in this appeal, can only be made by the Commission if it is satisfied that the claim was, or was partly, frivolous or vexatious, fraudulent or made without proper justification: section 341(4) and (5). The Respondent Employer has submitted that the “appeal” was frivolous or vexatious, but does not submit that it was fraudulent or made without proper justification. The section refers to the “claim” in this regard, which is, as previously stated, defined in section 4 (1) of the 1998 Act.

The words/phrase “frivolous or vexatious” are not defined in the Act and should be given their ordinary meaning. The Macquarie Dictionary defines “frivolous” as “of little or no weight, worth or importance; not worthy of serious notice; a frivolous objection characterised by lack of seriousness or sense”. “Vexatious” is defined as “causing vexation; vexing, annoying…”: Mudie v Gainriver Pty Ltd & Anor [2002] QCA 546 (13 December, 2002) per McMurdo P and Atkinson J. These words (or this phrase) are variously used in different contexts, but in any event, indicate that something much more than lack of success needs to be shown before proceedings (or a claim) can be said to be frivolous or vexatious: Mudie v Gainriver Pty Ltd & Anor (supra). The words were discussed in Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197, where Deane J said that “vexatious” means productive of serious and unjustified trouble and harassment. This meaning was approved by Mason CJ, Deane, Dawson and Gaudron JJ, in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538. An action may be deemed frivolous or vexatious if it is so obviously untenable that it cannot possibly succeed or is “manifestly groundless, so manifestly faulty that it does not admit of argument”: L Grollo Darwin Management Pty Ltd v Victor Plaster Products Pty Ltd (1978) 19 ALR 621.

Although the Appellant Worker’s claim failed before the Arbitrator and before me on appeal, there is no evidence in this case to suggest that the claim was entirely without substance, or was groundless or futile. Moreover, there is no evidence to show that the claim or the claimant, lacked bona fides. No suggestion was made along these lines, either to the Arbitrator or to me, until it was included in the Respondent Employer’s submission in support of this application for costs. The argument was not used by the Respondent Employer to resist the Appellant Worker’s claim, either in the arbitral or the appeal proceedings. As previously stated, it is not suggested that the claim was fraudulent or made without proper justification. The Respondent Employer’s submission that the grounds of appeal effectively arise out of a “retrospective regret” as to the tactics employed in the conduct of the original proceedings, may well be correct. It seems to me however, that this falls short of the more stringent requirements to be met, before it can be found that the claim was frivolous or vexatious, for the purposes of section 341(4) or (5) of the 1998 Act.

In all of the circumstances, the application for an order for costs against the Appellant Worker is refused. I make no order as to costs.

Gary Byron
Deputy President

24 July, 2003

I certify that that this is a true and accurate record of the reasons for decision of Deputy President Gary Byron, Workers Compensation Commission

Registrar

Date: 24 July 2003

[2003] NSWWCCPD 8

21 March 2003