Esmayel v Gilany Services Pty Ltd
[2006] NSWWCCPD 326
•28 November 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Esmayel v Gilany Services Pty Ltd [2006] NSWWCCPD 326
APPELLANT: Delavar Mostafa Esmayel
RESPONDENTS: Gilany Services Pty Ltd
INSURERS:Allianz AustraliaWorkers Compensation (NSW) Limited
FILE NUMBER: WCC8685-05
DATE OF ARBITRATOR’S DECISION: 23 December 2005
DATE OF APPEAL DECISION: 28 November 2006
SUBJECT MATTER OF DECISION: Challenge to findings of fact based on credibility and/or demeanour of witness.
PRESIDENTIAL MEMBER: Acting Deputy President Kevin O’Grady
HEARING:On the papers
REPRESENTATION: Appellant: Brydens Law Office LP
Respondent: Goldbergs
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 23 December 2005 is confirmed.
2.No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 23 January 2006 Delavar Mostafa Esmayel (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 23 December 2005.
The Respondent to the Appeal is Gilany Services Pty Ltd (‘the Respondent’).
The Appellant, who was born on 1 January 1962 in Iraq, arrived in Australia in January of 1996 in the company of his two dependant daughters. It is the Appellant’s allegation that he commenced, in either February 2002 or February 2001, employment with the Respondent as a Cleaner. The Appellant further alleges that on 1 August 2003, whilst performing his work for the Respondent at Blacktown NSW, he suffered injury to his back, right leg and right foot. The circumstances of the alleged injury and particulars of ensuing events are addressed hereunder.
By correspondence dated 10 November 2004 a claim was made on behalf of the Appellant by his Solicitors against the Respondent and its Workers Compensation Insurer, Allianz Australia Workers Compensation (NSW) Limited with respect to lump sum compensation benefits pursuant to section 66 and section 67 of the Workers Compensation Act 1987 (‘the 1987 Act’). That claim was denied by the Respondent and its Insurer. Thereafter, on 7 June 2005, the Appellant’s Solicitors registered an Application to Resolve a Dispute in the registry of the Commission on his behalf. That Application included claims with respect to weekly compensation as well as lump sum benefits and was subsequently amended to claim medical expenses.
On 28 June 2005 a Reply to Application to Resolve a Dispute was registered with the Commission on behalf of the Respondent. That document at Part 3 enumerated thirteen items in dispute which included:
“1. Whether the Applicant was employed by the Respondent.”
and:
“3.Whether the Applicant suffered any injury arising out of or in the course of employment with the Respondent (if so employed) with the Respondent [sic].”
That dispute between the parties to this appeal came before the Commission for determination by an Arbitrator on 23 September 2005. It was disputed by the Respondent at that hearing that the Appellant was, at any relevant time, a worker within the meaning of the 1987 Act and further that the Appellant suffered any injury within the meaning of the 1987 Act as alleged on 1 August 2003. The Arbitrator reserved his decision which was subsequently delivered on 23 December 2005.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’ dated 23 December 2005 records the Arbitrator’s orders as follows:
“The determination of the Commission in this matter is as follows:
1. Award and determination in favour of the Respondent.
2. No order as to costs.”
The Arbitrator’s Reasons for Determination (‘Reasons’) set out above accompanied the Certificate of Determination and were also dated 23 December 2005.
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
(i)Whether the Arbitrator erred as to his determination of questions of fact by reason of:
(a) failing to take into consideration matters relevant to assessing the Appellant’s “presentation” when giving evidence;
(b) in concluding that an inconsistency existed between the Appellant’s evidence and the contents of documents produced by Liverpool Hospital;
(c) in drawing inferences from the contents of documents produced by Liverpool Hospital;
(d) in allowing irrelevant considerations to influence his findings, and
(e) in taking into consideration matters in respect of which the Appellant was not given an opportunity to address.
(ii)Whether the Arbitrator failed to state adequate reasons for his conclusions of fact concerning the authenticity of an identification tag.
The summary above is taken from the matters raised on behalf of the Appellant in document headed “2.3 Submissions in Favour of Review of the Decision” which is annexed to the Appellant’s Application with respect to this appeal.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Both the Appellant and the Respondent have agreed that both the Application for Leave to Appeal and the Appeal itself may be decided solely on the basis of the written Application and the written Notice of Opposition lodged. The willingness of the parties to proceed in this manner has come about notwithstanding the fact that a significant proportion of oral evidence taken before the Arbitrator at the hearing was not recorded and is thus absent from the transcript of proceedings which has been produced based upon the contents of a sound recording disc. It may be inferred from the state of the transcript that there was no sound recording produced of the greater part of the Appellant’s evidence in chief nor of a significant proportion of his cross-examination by Counsel for the Respondent.
The absence of a complete sound recording of proceedings before the Arbitrator and, hence, the unavailability of a complete transcript of those proceedings was considered by Bryson JA in Aluminium Louvres and Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 (unreported). His Honour when addressing the absence of a sound recording and written transcript of proceedings before an Arbitrator observed:
“In the present case, for reasons which were not explained, there was no compact disc or sound recording of the arbitration hearing and the evidence given there. This is a serious shortcoming, because it greatly impedes the right of appeal and the due exercise of powers of the Presidential member under section 352; and also impedes the conduct of a further appeal under section 352. According to circumstances, the absence of a sound recording could fairly readily lead a Presidential member to a decision to require a re-hearing; although that result would not be automatic.”
As noted above each of the parties consents to this appeal proceeding to determination on the basis of the documents before the Commission. I also note that the transcript which is available includes a record of submissions put on behalf of each of the parties to the Arbitrator. Those submissions address the evidence upon which reliance was placed. I further note that the Statement of Reasons of the Arbitrator is full and detailed.
Having regard to the matters noted above and to Practice Directions Nos. 1 and 6, 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.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the Application meets the requirements of section 352 of the 1998 Act.
The amount of compensation at issue on the appeal is such that the subject matter of the appeal meets the relevant threshold requirements of section 352(2) of the 1998 Act which must be met before a grant of leave to appeal may be made by the Commission.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The requirements of section 352(2) and (4) having been satisfied and having regard to the subject matter of the appeal and the arguments raised I order that leave be granted to the Appellant to appeal to the Commission.
EVIDENCE AND SUBMISSIONS
The documentary evidence before the Arbitrator comprised the material which was noted at paragraph 9 of his Reasons.
The Arbitrator, at the hearing, granted leave to each of the parties to adduce further evidence. The Appellant was granted leave to give supplementary oral evidence and the Respondent was granted the right to cross-examine the Appellant. The Respondent was granted leave to adduce oral evidence of Soliman Gilany, a Director of the Respondent Company, and the Appellant was granted leave to cross-examine Mr Gilany. As noted above it appears that a substantial proportion of the oral evidence given by the Appellant before the Arbitrator has been omitted from the transcript of proceedings which is before the Commission. That omission appears to have been the result of a technical fault in the recording process adopted at the hearing.
It was noted by the Arbitrator at paragraph 10 of his reasons that certain passages contained in documents “authored by the Director of the Respondent” were struck out by agreement between the parties and that those parts of the documents were highlighted by markings with a fluorescent pen.
Material adduced on behalf of the Appellant included a written Statement made by him dated 5 August 2004 and a supplementary Statement made by him on 14 September 2005. Those two documents contain the allegations of fact upon which the Appellant relied to ground his claim for workers compensation benefits as detailed in his Application. The Appellant stated that he had arrived in Australia in January of 1996 and that since such arrival had but one job, that being employment with the Respondent Company. It was alleged in the Appellant’s first Statement that his employment commenced in February 2002. That allegation was the subject of revision in his second supplementary Statement where it was said by the Appellant that he in fact commenced employment with the Respondent in February 2001. The Appellant proceeded to describe the duties performed by him with the Respondent as a Cleaner. It was his allegation that he worked 60 hours per week and that his “pay was $400 per week, nett”. The Appellant described an injury which he alleged occurred on 1 August 2003 in the course of his work at Blacktown NSW. The Appellant alleges that he was at the relevant time working with Mr Gilany and was instructed to break up a door by raising the door from the ground surface with some bricks and jumping on the door. The Appellant alleged that in the process of so doing he slipped and fell forwards and “immediately felt a sharp pain in my lower back and right leg”.
It is the Appellant’s allegation that immediately thereafter Mr Gilany took him to the Respondent’s office, which was also Mr Gilany’s home. The Appellant alleges he asked that he be taken to a Doctor following which it is alleged that Mr Gilany stated that he was a Doctor and that there was no need to see someone else. The Appellant was given some pills for pain which caused the pain to subside and it is alleged that he remained at Mr Gilany’s premises for 7 days following which the Appellant was taken to his home in Bathurst NSW.
The Appellant alleges that he was unable to work after the subject injury and stated that he left Bathurst to move to Sydney to “seek help in the form of financial support, medical treatment and somewhere to live”. The Appellant states that he sought treatment from Dr Sorani of Fairfield and Dr Swid of Fairfield. The dates of such treatment are not specified in the Appellant’s Statements.
The Appellant’s Statements which were before the Arbitrator contain a deal of other material however the above summary addresses the primary allegations of fact made by the Appellant. The Appellant relied upon written Statements of Linda Munro and Nereman Mostafa to corroborate his allegation that he was employed by the Respondent Company. It was argued by the Respondent at the hearing that the weight of the evidence of Ms Munro and Mr Mostafa should be assessed having regard to a suggested personal relationship between the Appellant and Ms Munro and the fact, that was apparently established at the hearing, that Mr Mostafa was in fact the Appellant’s brother. (A fact not apparent from the written Statement of Mr Mostafa.)
The Respondent relied at the hearing upon a number of items of correspondence prepared by Mr Soliman Gilany and a statement of Mr Mohammed Baig. Whilst a great many issues are addressed by Mr Gilany in the various items of correspondence it need only be noted that it was Mr Gilany’s assertion that at no time was the Appellant ever employed by the Respondent Company. Mr Baig, in his Statement dated 20 June 2005, stated that in January 2001 he [Mr Baig] “became a sub-contractor for Gilany Services”. Mr Baig stated that during the currency of that sub-contract the Appellant:
“…approached me for work on several occasions. I probably gave him about three jobs in total. I gave him only grass cutting. I found Delavar was drunk when he came to work and very unreliable. I decided he was a safety risk to others and himself so decided not to give him any other jobs.”
The medical evidence relied upon by the Appellant which included a report from Dr Max Ellis, General Surgeon, dated 16 June 2004 and CT scan lumbar spine report compiled by Dr Jones, Specialist Radiologist, addressed to Dr Swid dated 27 January 2004 establish that the Appellant suffers from a rupture of the L4/5 disc. Given the substantial conflict between the parties as to the relevant facts of employment and injury, each of the parties sought to rely upon other written material in support of the case each was presenting before the Arbitrator. It should be noted that the Appellant did not adduce any written report or other record of Dr Swid who was, apparently, the first Medical Practitioner consulted by him with respect to treatment of his back disability. Reliance was placed by the Appellant upon the clinical records of Dr Sorani which records reveal that the first recorded complaint of matters relevant to the Appellant’s claim is dated 14 January 2004 which entry states:
“Pain right hip spreading to leg and foot. ? work-related trauma. Few months lower back is tender. Forward flexion is restricted because of pain. SLRT 40º both legs.
There is no focal neurological findings in lower limbs. Tramal BD….”
The Appellant further relied upon material produced by Liverpool Hospital. That material included the report of Dr Jones referred to above dated 27 January 2004 as well as notes recorded apparently on 16 April 2004 at which time a history as follows was taken:
“Patient hurt his back at work 8/12 ago. He saw his GP, who prescribed painkillers, which decreased pain a little. Pain in the R side of low back and R posterior aspect of the leg. No pins and needles, no numbness.”
A subsequent note made at the Physiotherapy Department of the Hospital apparently on 23 April 2004 recorded an injury “8/12 ago injured L/S at work (? W/Comp) … Reports occurred when lifted door…” Those records record physiotherapy attendances by the Appellant on nine occasions between 6 May 2004 and 10 August 2004.
The Appellant placed before the Arbitrator what was described as a Photo Identification Card allegedly issued to him by the Respondent Company. That card which, in the Arbitrator’s view, lacked technical sophistication was the subject of dispute by the Respondent, and the Arbitrator has dealt with those matters in the course of his Reasons.
The Respondent adduced evidence disputing the Appellant’s allegations of fact relating to alleged employment and injury as well as medical evidence being the reports of Dr Michael Shatwell, Consultant in Orthopaedic and Accident Surgery. No issue is raised as to the fact that the Appellant suffers an injury to his lumbar disc as demonstrated in the radiological studies however there remains an issue between the Medical Experts as to the extent of any resultant impairment.
The Arbitrator, in his Reasons, made findings of fact which were against the Appellant’s allegations. In his submissions the Appellant argues that the Arbitrator erred in so finding by reason of his failure to take into consideration matters relevant to assessing the Appellant’s “presentation” when giving evidence. It is further argued that the Arbitrator erred in concluding that there existed an inconsistency between the Appellant’s evidence and the contents of documents produced by Liverpool Hospital. It is further argued that the Arbitrator erred in drawing inferences from the contents of documents produced by the Liverpool Hospital and in allowing irrelevant considerations to influence his findings. It was also submitted on behalf of the Appellant that the Arbitrator erred in taking into consideration matters in respect of which the Appellant was not given an opportunity to address. The Appellant proceeds to argue that the Arbitrator failed to state adequate reasons for his conclusions of fact concerning the authenticity of the identification card.
The Respondent in its “Submissions Against Review of the Decision” seeks to uphold the factual findings of the Arbitrator. In the course of those submissions the Respondent opposed any application by the Appellant to admit “fresh evidence”. The possibility of such an application was foreshadowed in the Appellant’s original submissions however it is to be noted that no such application with respect to banking records, as there stated, has been made in this appeal.
DISCUSSION AND FINDINGS
This is an appeal brought pursuant to the provisions of section 352 of the 1998 Act. Subsection (5) of that section provides:
“(5)An appeal under this section is to be by way of review of the decision appealed against.”
The nature of the “review” stated in the aforementioned subsection was the subject of examination by Dr Fleming DP in Mayne Health Group t/as Nepean Private Hospital v Sarah Sandford [2002] NSWWCCPD 6. In summary, the Commission’s conclusion in the last mentioned decision was that a proceeding such as the present is not an “appeal” in the strict sense nor is it a hearing de novo. It was further stated in the course of that afore- mentioned decision that such power to “review” is exercisable only where it can be demonstrated that the original decision of the Arbitrator was affected by legal, factual or discretionary error.
The Appellant’s submissions, which have been summarised above, represent a challenge to the Arbitrator’s approach to determining questions of fact as noted at paragraph 33 of his Reasons:
“33.A number of important factual and threshold issues are in dispute including was the Applicant a “worker” of the Respondent and did the Applicant suffer an injury on 1 August 2001 that was one arising out of or in the course of his employment with the Respondent.”
Against the background of conflict between the evidence of the Appellant and that of Mr Gilany the Arbitrator stated at paragraph 41 of his Reasons:
“41.In circumstances where the two major witnesses give such a diverse account it is instructive to have regard to surrounding circumstances, the objective facts and the evidence provided by third parties and independent bodies.”
The Arbitrator proceeded to examine the evidence before him and his analysis of that material is to be found between paragraphs 43 and 84 of his Reasons. Included in that analysis of the evidence are observations by the Arbitrator as to the absence of material including any evidence of Dr Swid, the absence of any explanation as to how the Appellant “determined that the alleged injury was occasioned on the date 1 August 2003” and the absence of any explanation as to why the Appellant and Mr Mostafa “use different surnames”. That last observation by the Arbitrator was preceded by a notation that Mr Mostafa had stated - “I knew Delevar (sic) Esmayel back in Kurdistan and we remained in contact when he arrived in Australia”.
Following his analysis of the evidence the Arbitrator stated:
“SUMMARY
85.The Applicant bears the onus of proof. Both the Applicant, and Mr Gilany the major witness for the Respondent, gave diametrically opposed evidence on almost all important issues. Having regard to the totality of the evidence and the manner in which it was presented I am of the view that Mr Gilany’s evidence was consistent and not adequately contradicted whereas the Applicant’s account was not.
86.The Respondent gave evidence in a forthright and confident and credible manner without hesitation in answering questions concerning a range of pertinent and peripheral matters. The Respondent provided written information freely and early in a comprehensive manner in response to the claim and to the Application whereas I have formed the view that on balance the Applicant’s account was inconsistent and not sufficiently supported by independent or contemporaneous evidence or documentation or explanation regarding the lack thereof.
87.The Applicant’s account was not sufficiently supported by the production of financial records or explanation regarding the lack thereof.
88.The Applicant’s account was not or not sufficiently supported by his treating practitioners or other medical evidence or history.
89.The Respondent provided documentary evidence of a financial and other nature in support of its contentions. The Respondent holds workers compensation insurance and there was no or no sufficient evidence for a finding that it failed in its statutory or other obligations in relation to its activities.
90.On the evidence before me I am not satisfied that the Applicant was a “worker” for the Respondent during the period January 2001 through 1 August 2003.
91.On the evidence before me I am not satisfied that at the relevant time (1 August 2003) the Applicant was employed by the Respondent.
92.On the evidence before me I am not satisfied that the Applicant suffered an injury on 1 August 2003 to his back, right leg and right foot that arose out of or in the course of employment with the Respondent.”
It can be seen that the Arbitrator, having analysed the evidence and addressed the conflict between the two witnesses, has reached a conclusion which, whilst not expressly stated in the course of Reasons, rejected the Appellant as being a witness of credit. The Arbitrator’s preference for the evidence of Mr Gilany where it conflicted with that of the Appellant may be taken, having regard to the Arbitrator’s observations in paragraph 85 of his Reasons (noted above) as being based in part, if not substantially, upon the demeanour of each of the conflicting witnesses. It is also clear from the Arbitrator’s analysis of the evidence as a whole that he (as was observed in Fox v Percy (2003) 214 CLR 118 by Gleeson CJ, Gummow and Kirby JJ at para.31) has reasoned his “conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events”.
In the present case the Arbitrator has made findings of fact founded upon, in part, the acceptance of the evidence of Mr Gilany over that of the Appellant. In those circumstances the scope of appellate review under the 1998 Act is to conform to the principles as enunciated by the High Court in Devries v Australian National Railways Commission (1993) 177 CLR 472 (‘Devries’) where it was stated (by Brennan, Gaudron and McHugh JJ at 479):
“More than once in recent years, this court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact … 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 advantage’ … or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’ or which was ‘glaringly improbable’ …”
It is put by the Appellant that the Arbitrator had “unfairly preferred the evidence of Mr Gilany based upon his presentation when the Appellant’s presentation could not be determined given that his evidence was given through an Interpreter”. There is, in my view, no basis upon which it could be argued that in fact the Appellant was at a disadvantage by reason of his reliance upon an Interpreter at the hearing. The Arbitrator’s “preference” for the evidence of Mr Gilany over that of the Appellant in cases of conflict are, as indicated above, based not only upon matters of demeanour but upon the assessment of objective material in evidence before the Commission. I am not satisfied that the Arbitrator’s approach was in any sense unfair and in particular am not satisfied that his approach constituted in any way a denial of procedural fairness.
With respect to the Appellant’s submission founded upon the reasoning expressed by the Arbitrator at paragraph 40 it is my view that the Arbitrator was there contrasting the various histories as recorded in documents in evidence and I reject the Appellant’s submission that the Arbitrator had found “an inconsistency in the Liverpool Hospital clinical notes”. To so argue misrepresents the manner of approach adopted by the Arbitrator when analysing the evidence in its totality. The Arbitrator was contrasting the matters as recorded in those notes with history given by the Appellant to “medico legal doctors”.
With respect to the Appellant’s submission founded upon the contents of paragraph 57 of the Arbitrator’s Reasons I conclude that the inference drawn by the Arbitrator there stated is open on the evidence and I am not satisfied that any error in any relevant sense has been demonstrated by the Appellant.
The Appellant’s argument that the matters referred to by the Arbitrator at paragraph 59 of his Reasons demonstrates consideration of matters irrelevant to the issue before him is not, in my view, made out. I accept the Respondent’s submission (number 5) that the matters there noted by the Arbitrator may be taken into account when determining the credibility of the Appellant.
The Appellant suggests that the Arbitrator has unfairly inferred that the Appellant did not receive payments from the Respondent given “the lack of deposits into the Appellant’s bank account”. The Arbitrator (at paragraphs 66 to 68 of his Reasons) summarises the evidence and observes that there is an absence of corroborative financial records in the Appellant’s case. There was no misstatement by the Arbitrator as to the state of the evidence and any inference that he may have drawn from those facts with respect to the question of payment by the Respondent to the Appellant was, in my view, open to him and no error in any relevant sense has been made out in this submission.
The Appellant’s complaint with respect to the Arbitrator’s process of reasoning with respect to the “identification tag” is not, in my view, made out. Contrary to the Appellant’s assertion the Arbitrator did not make an explicit finding that the “identification tag” was falsified but merely narrated, correctly in my view, the evidence with respect to that issue and in so doing highlighted the deficiencies in the Appellant’s case.
With respect to the matters raised by the Appellant founded upon the contents of paragraph 81 of the Arbitrator’s Reasons I reiterate that no application has been made in this appeal to adduce fresh evidence with respect to financial, banking or tax records.
It can be seen that the Appellant’s submissions on this appeal have been rejected in their entirety. In the circumstances the appeal fails.
DECISION
The appeal is unsuccessful. The decision of the Arbitrator dated 23 December 2005 is confirmed.
COSTS
No order as to costs of the appeal.
Kevin O’Grady
Acting Deputy President 28 November 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
0
3
0