Frew v Donate Life (N.M.A.H.S)
[2014] WADC 96
•4 AUGUST 2014
FREW -v- DONATE LIFE (N.M.A.H.S) [2014] WADC 96
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WADC 96 | |
| Case No: | APP:21/2014 | 12 MAY 2014 | |
| Coram: | DERRICK DCJ | 4/08/14 | |
| PERTH | |||
| 34 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal granted Appeal allowed | ||
| PDF Version |
| Parties: | SUSAN FREW DONATE LIFE (N.M.A.H.S) |
Catchwords: | Workers' Compensation Appeal from Workers' Compensation Arbitration Service Appeal against finding of period of total incapacity Requirements of rules of natural justice Whether appeal involves a question of law |
Legislation: | Workers' Compensation and Injury Management Act 1981 (WA) Workers' Compensation and Injury Management Regulations 1982 Workers' Compensation and Injury Management Arbitration Rules 2011 |
Case References: | Apache Northwest Pty Ltd v Agostini [No 2] [2009] WASCA 231 Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17 Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571 Catholic Education Office of WA v Granitto [2012] WASCA 266 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576 Glennan v Commissioner of Taxation [2003] HCA 31; (2003) 77 ALJR 1195 Hoskins v Van Den-Braak (1998) 43 NSWLR 290 House v The King [1936] HCA 40; (1936) 55 CLR 499 Kioa v West [1985] HCA 81; (1985) 159 CLR 550 Mifsud v Campbell (1991) 21 NSWLR 725 National Companies and Securities Commission v The News Corporation Limited [1984] HCA 29; (1984) 156 CLR 296 Neill v Nott [1994] HCA 23; (1994) 121 ALR 148 Pacific Industrial Co v Jakovljevic [2008] WASCA 60 Paridis v Settlement Agents Supervisory Board [2007] WASCA 97 Re Burton; Ex parte Lowe [2003] WASCA 306 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
DONATE LIFE (N.M.A.H.S)
Respondent
ON APPEAL FROM:
Jurisdiction : WORKERS' COMPENSATION ARBITRATION SERVICE (WA)
Coram : ARBITRATOR RUTHERFORD
Citation : A2941
Catchwords:
Workers' Compensation - Appeal from Workers' Compensation Arbitration Service - Appeal against finding of period of total incapacity - Requirements of rules of natural justice - Whether appeal involves a question of law
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA)
Workers' Compensation and Injury Management Regulations 1982
Workers' Compensation and Injury Management Arbitration Rules 2011
Result:
Leave to appeal granted
Appeal allowed
Representation:
Counsel:
Appellant : Mr G T Stubbs
Respondent : Mr M J Thickett
Solicitors:
Appellant : Peter J Griffin & Co
Respondent : HWL Ebsworth Lawyers
Case(s) referred to in judgment(s):
Apache Northwest Pty Ltd v Agostini [No 2] [2009] WASCA 231
Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250
Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571
Catholic Education Office of WA v Granitto [2012] WASCA 266
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576
Glennan v Commissioner of Taxation [2003] HCA 31; (2003) 77 ALJR 1195
Hoskins v Van Den-Braak (1998) 43 NSWLR 290
House v The King [1936] HCA 40; (1936) 55 CLR 499
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Mifsud v Campbell (1991) 21 NSWLR 725
National Companies and Securities Commission v The News Corporation Limited [1984] HCA 29; (1984) 156 CLR 296
Neill v Nott [1994] HCA 23; (1994) 121 ALR 148
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Re Burton; Ex parte Lowe [2003] WASCA 306
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212
Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1
- DERRICK DCJ:
Introduction
1 In 2012 the appellant was employed by the respondent as an organ donor coordinator. As an organ donor coordinator the appellant was required to coordinate the safe delivery of donated organs to the organ recipient's surgical team.
2 In late 2012 the appellant made an application for workers' compensation. She alleged that in October 2012 she had developed a psychological illness as a result of work related stress and bullying (the application).
3 The application went to arbitration in June 2013. Liability and quantum were in issue.
4 At the arbitration the appellant was represented by Mr R O'Toole, a registered independent agent within the meaning of pt 4 of the Workers' Compensation and Injury Management Regulations 1982 (the Regulations). The respondent was represented by a legal practitioner, Mr M J Thickett.
5 On 23 January 2014 the arbitrator handed down his decision. He published written reasons.
6 The arbitrator found that the appellant was entitled to compensation. He ordered that the appellant be paid weekly payments of compensation for total incapacity for the period 2 October 2012 to 20 December 2012 inclusive pursuant to the provisions of sch 1 cl 11 of the Workers' Compensation and Injury Management Act 1981 (WA) (the Act).
7 The appellant appeals against the decision of the arbitrator limiting the weekly payments to the period ending 20 December 2012. She seeks an order that she be paid weekly payments of compensation for total incapacity for the period 2 October 2012 to 13 March 2013.
Nature of the appeal
8 The appeal is brought under s 247 of the Act. Section 247, so far as is relevant, provides as follows:
247. Appeal against arbitrator's decision made under Part XI:
(1) If written reasons for an arbitrator's decision under Part XI in respect of a dispute are given to a party to the dispute (whether as required by section 213 (3) or otherwise), the party may, with the leave of the District Court, appeal to the District Court against the decision.
(2) Subject to subsection (3), the District Court is not to grant leave to appeal unless —
(a) in the case of an appeal in which an amount of compensation is at issue —
(i) a question of law is involved and the amount at issue in the appeal is both —
(I) at least $5 000 or such other amount as may be prescribed by the regulations; and
(II) at least 20% of the amount awarded in the decision appealed against;
or
(ii) a question of law is involved and, in the opinion of the District Court, the matter is of such importance that, in the public interest, an appeal should lie;
and
(b) in any other case, a question of law is involved.
…
(4) An application for leave to appeal cannot be made later than 28 days after the day on which the written reasons for the decision appealed against were given to the party making the application.
(5) An appeal under this section is to be by way of review of the decision appealed against and, except as provided by this Part or section 267, is to be conducted in accordance with the rules of court of the District Court.
(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 cannot be given on an appeal to the District Court except with the leave of the District Court.
(7) On hearing an appeal made under this section, the District Court may —
(a) affirm, vary, or quash the decision appealed against, or substitute, and make in addition, any decision that should have been made in the first instance; and
(b) subject to section 267, make any further or other decision, as to costs or otherwise, as the District Court thinks fit.
10 As it is apparent from s 247(2)(a), leave to appeal cannot be granted unless the ground of appeal 'involves' a question of law.
11 If the pre-conditions specified in s 247(2)(a)(i)(I) and s 247(2)(a)(i)(II) are met there is no limit or restriction placed on the discretion to grant leave to appeal, other than that the appeal involve a question of law. If a question of law is involved leave should be granted if, in all the circumstances of the particular case, it is in the interest of justice that there should be a grant of leave: Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [16]; BHP Billiton Iron Ore Pty Ltd v Brady [2008] WASCA 250 [20]. If no question of law can be identified in the appeal there is no jurisdiction in the court to grant leave to appeal: Pacific Industrial Co v Jakovljevic [2008] WASCA 60 [17]; Catholic Education Office of WA v Granitto [2012] WASCA 266 [54].
12 An appeal 'involves' a question of law where either an error of law, or an error of mixed law and fact is involved: BHP Billiton Iron Ore v Brady [3]; Atanasoska v Inghams Enterprises Pty Ltd [2009] WASCA 17; Catholic Education Office of WA v Granitto [53]. An appeal will not 'involve' a question of law merely because a party asserts that it does: Glennan v Commissioner of Taxation [2003] HCA 31; (2003) 77 ALJR 1195 [14]; BHP Billiton v Brady [1], [15], [19]. Thus in Atanasoska v Inghams Enterprises Buss JA (Wheeler and Pullin JA agreeing) said [21]:
If a ground of appeal by a party, properly analysed, does not involve a question of law, linguistic gymnastics in the formulation of the ground cannot alter the position. A ground that asserts a decision is against the evidence and the weight of the evidence does not raise an issue involving a question of law. A court, tribunal or statutory decision-maker does not make an error of law merely because the court, tribunal or decision-maker finds facts wrongly or upon a doubtful basis. Generally see Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [53] – [55] and the cases there cited.
13 If some question of law is involved, the whole decision appealed from is open to review and not merely the question of law identified: Pacific Industrial Co v Jakovljevic [18], [30], [31]. The review is neither a hearing de novo nor an appeal in the strict sense: Pacific Industrial v Jakovljevic [20], [30], [31]. Rather the review must be conducted on the materials before the arbitrator: Pacific Industrial v Jakovljevic [18], [30], [31]. The court must within the constraints marked out by the nature of the appellant process conduct a real review: Pacific Industrial v Jakovljevic [20], [24].
14 Where leave is granted and a review is undertaken, an appellant must still, for the purposes of the review, provide a proper basis for disturbing the arbitrator's decision by pointing to some error in it. An appellant may not simply invite the court to ignore the arbitrator's decision and start again with a view to having the court substitute its own decision for that of the arbitrator: Pacific Industrial v Jakovljevic [20], [26]; Catholic Education Office of WA v Granitto [57].
Grounds of appeal
15 The appellant's grounds of appeal against the arbitrator's decision are expressed in the appeal notice in the following terms:
1. In determining the question what is the extent of any such incapacity for work at par 107, page 24 of the reasons for decision the arbitrator failed:
(1) to give full effect to the uncontradicted evidence of Dr Ng's report dated 27 November 2012 that the [appellant] had currently no capacity to work;
(2) to find upon the evidence that he could safely draw conclusions of ongoing incapacity during the period 21 December 2012 to 13 March 2013;
(3) to recall his comments during the hearing of the matter that he would make ongoing orders for weekly payments subject to medical certification past 20 December 2012.
2. It was common ground that the progress medical certificates of the [appellant's] unfitness for work [were] supplied from time to time to the respondent as part of ongoing discovery.
3. The arbitrator failed to provide the parties any opportunity to provide submissions on the terms of final orders to be made and for production of up to date ongoing progress medical certificates.
16 The appellant has abandoned ground 2 of her grounds of appeal.
17 According to the appeal notice the question of law involved in ground 1 is that the arbitrator 'failed to accept the expert evidence of Dr Ng that the [appellant] had currently no capacity for work and to draw an inference of unfitness to work until 13 March 2013'. The appeal notice asserts that the question of law involved in ground 3 is that 'procedural fairness under s 188 of the Act requires an opportunity to make submissions as to the terms of final orders and for the production of up to date ongoing progress medical certificates especially where with ongoing discovery the [appellant] provided progress medical certificates to the respondent'.
18 Before turning to deal with the grounds of appeal it is necessary to set out the relevant portions of the transcript of the hearing before the arbitrator as well as the relevant paragraphs of the arbitrator's reasons for decision.
The proceedings before the arbitrator
19 The first relevant exchange occurred on 13 June 2013, which was the first day of the hearing, during the appellant's evidence-in-chief (ts 78 – 80). The exchange was as follows:
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21 The issue regarding the progress medical certificates was returned to on 14 June 2013. On that date the following exchange occurred at the point in time in which the appellant's representative was closing the appellant's case (ts 68 – 73):
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23 Finally, the issue was once again briefly referred to on 20 June 2013, this being the last day of the hearing, during the closing addresses of the respondent's counsel and the appellant's representative.
24 During his closing address the respondent's counsel made the following statements (ts 22):
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True enough it is – been said and drawn to your attention there are only two progress medical certificates filed in this matter. If you are only minded to make orders in my client's favour for the period 6/11/12 to 20/12/12, that's the extent of the progress medical certificates that I filed, then I seek your order should go on and/or that payments should continue on an ongoing basis subject to certification. |
The arbitrator's decision
27 The arbitrator dealt with, and expressed his findings in relation to, whether any incapacity for work resulted from compensable injury and, if it did, the extent of the appellant's incapacity at [108] – [122] of his reasons for decision. The arbitrator said the following:
108. As earlier found, Ms Frew did not have an Adjustment Disorder or any stress related illness as at 13 March 2013, being the date of Dr Mander's examination. I further accept that she was in any event fit to work from that date, based on Dr Mander's opinion.
109. Consistent with my acceptance of Dr Mander's evidence, Ms Frew's period of incapacity therefore ceased, at the latest, on 13 March 2013.
110. The only medical certificates adduced into evidence provide evidence for unfitness for work up to 20 December 2012 (Dr Veeraputhran).
111. As to the period from Dr Ng's examination, 27 November 2012, up to Dr Mander's examination, 13 March 2013, Dr Ng clearly anticipated it would take some time for Ms Frew's symptoms to subside. He certified her on 27 November 2012 as having no capacity to work. Such certification was for an unspecified period of time.
112. Dr Mander said that he did not consider Ms Frew to have had an Adjustment Disorder at any time, but for the reasons set out above, I do not accept his opinion on that issue.
113. However, Dr Mander does note that Adjustment Disorders generally resolve spontaneously, which I accept. Dr Mander has helpfully included features of an adjustment disorder in DSM-IV which includes 'Symptoms resolve within 6 months of termination of the stressor'.
114. Given the above, the medical evidence overall suggests that symptoms will usually be comparatively short lived. DSM-IV suggests a resolution within 6 months.
115. Accepting the efficacy of the progress medical certificates and reading them with Dr Ng's report but given Dr Mander's observations as to spontaneous recovery and given the lack of clarity of Dr Ng's comments as to the period of incapacity (not symptoms), I consider I have insufficient evidence from which I can safely draw conclusions of ongoing incapacity past 20 December 2012, especially as to a claim for total incapacity.
116. There is no claim for partial incapacity. I have considered the possibility Ms Frew may have been able to work in some alternate occupation during the period 21 December 2012 to 13 March 2013.
117. In that regard, Ms Frew carries the onus to prove such incapacity and the resultant loss of earnings.
118. Ms Frew led no evidence to establish partial incapacity and the evidence that there is (such as from Dr Mander referring her apparent willingness to act as a cleaner) is insufficient to persuade me that Ms Frew has satisfied her onus of proof in that regard.
119. On that basis, no orders as to partial incapacity can be made.
120. Given the above analysis, I find the evidence establishes that Ms Frew suffered total incapacity for work resulting from her compensable injury for the period 2 October 2012 to 20 December 2012.
121. In that regard, I again note that Donate Life conceded that any payments should commence from 2 October 2012. No alternate date was put by Ms Frew.
Weekly payments
122. As a consequence of my findings, I find that Ms Frew is entitled to weekly payments for total incapacity for the period 2 October 2012 to 20 December 2012 inclusive calculated pursuant to the provisions of Schedule 1 clause 11 of the Act.
Ground 1(1)
28 Ground 1(1) of the grounds of appeal, although not formally abandoned by the appellant at the hearing of the appeal, was not pressed. In my opinion this ground of appeal is without merit for two reasons.
29 First, any failure to give 'full effect' to evidence, whether uncontradicted or not, is not a failure which amounts to an error of law. A failure to give 'full effect' to evidence, as opposed to a failure to take account of material evidence, is nothing more than an error of fact. Accordingly, the ground of appeal does not 'involve' a question of law.
30 Second, as is apparent from the above cited paragraphs of the arbitrator's reasons for decision, the evidence of the psychiatrist Dr Ng, which was in the form of a report dated 27 November 2012, was not uncontradicted. Dr Ng's evidence was that as at the date of his examination of the appellant on 27 November 2012 the appellant had an adjustment disorder and had no capacity to work. His evidence was also that the appellant's symptoms would take some time to subside (12 months or more). In contrast, the evidence of the psychiatrist Dr Mander, which was comprised of a report dated 15 March 2013, was that the appellant did not have an adjustment disorder at any time. I note in this context that during the hearing of the appeal the appellant's counsel accepted that Dr Ng's evidence was 'not uncontradicted in a broad sense'.
31 I would refuse leave to appeal on ground 1(1).
Ground 1(2)
The arguments
32 The argument in support of ground 1(2) as advanced and developed by appellant's counsel at the hearing of the appeal was that the arbitrator made an error of law by failing to take into account the uncontradicted evidence given by the appellant on 13 June 2013 in response to questioning by her representative and the arbitrator that her general practitioner 'still did not feel' that she was fit to go back to work, and that all of the progress certificates issued by her general practitioner since December 2012 had been forwarded to the respondent's insurer. The appellant's counsel submitted that the arbitrator's failure to take account of the appellant's evidence in this regard is apparent from the fact that the arbitrator made no reference at all to the evidence in his reasons for decision. The appellant's counsel contended that there was no reason why the arbitrator should not have taken account of the appellant's undisputed evidence on this point, particularly given the terms of s 188(2) of the Act which provides:
(2) The Evidence Act 1906 does not apply to proceedings before an arbitrator and an arbitrator —
(a) is not bound by the rules of evidence or any practice or procedure applicable to courts of record, except to the extent that the arbitration rules make them apply; and
(b) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
34 The respondent accepts that the arbitrator made no reference in his reasons for decision to the appellant's evidence that her general practitioner 'still did not feel' that she was fit to return to work and had continued to provide progress medical certificates beyond 20 December 2012. Moreover, although the respondent did not formally concede at the hearing of the appeal that there was a failure to consider the relevant evidence, the respondent did not dispute that a failure to take account of material evidence, as opposed to a failure to place any weight on evidence, can amount to an error of law. The essence of the respondent's submission on this ground of appeal was that even if the arbitrator did make an error of law by failing to take account of the relevant aspect of the appellant's evidence the error would not have made a difference to the arbitrator's decision and in any event does not provide a basis for this court to disturb the arbitrator's decision. In this regard the respondent's counsel pointed out that the progress certificates referred to by the appellant were not actually produced, that the certificates would only have been signed by the appellant's treating general practitioner as opposed to a specialist practitioner, that the arbitrator had before him the expert evidence of Dr Ng and Dr Mander, and that the arbitrator clearly based his decision on the expert evidence of Dr Ng and Dr Mander. The respondent further submitted that the arbitrator's conclusion that the appellant's incapacity ceased at a point part way between the two dates put forward by Dr Ng and Dr Mander was a sensible one.
Analysis
35 I have read the arbitrator's reasons for decision in their entirety. The reasons are, with respect, relatively detailed and comprehensive. It appears to me from reading the reasons that the arbitrator did adopt the approach of referring to all aspects of the evidence which he considered to be material to the various conclusions that he arrived at. Further, and as is apparent from the above cited portions of the transcript of the arbitration the arbitrator, during his exchanges with the appellant's representative in relation to the non-production of the up to date progress medical certificates, repeatedly said, in substance, that he could only decide the case on the evidence that was put before him. In these circumstances, I am satisfied that the only inference that is reasonably available to be drawn from the fact that the arbitrator did not, in dealing with the relevant issue (that is, the issue whether any incapacity on the part of the appellant for work resulted from a compensable injury and if it did what was the extent of the incapacity), refer in his reasons to the appellant's evidence to the effect that her general practitioner had since 20 December 2012 continued to certify her as totally unfit for work, is that he did not take the evidence into account.
36 The failure by a decision maker to take account of evidence will not always amount to an error of law. Whether or not such a failure will amount to an error of law will depend on the materiality of the evidence in question to the issue determined: House v The King [1936] HCA 40;(1936) 55 CLR 499, 505; Mifsud v Campbell (1991) 21 NSWLR 725, 728.
37 The relevant evidence given by the appellant was clearly hearsay. However, by reason of s 188(2) of the Act the hearsay nature of the evidence did not render the evidence inadmissible on the question of the extent of the appellant's incapacity. Moreover, while in some circumstances the hearsay nature of evidence might bear upon the weight to be placed on the evidence and might render the evidence of no weight at all, in the case before the arbitrator the evidence was undisputed. The respondent's counsel at no point sought to challenge by cross-examination or otherwise the truthfulness of what the appellant was saying. Rather, the position that counsel adopted was simply that the respondent did not formally concede that the appellant had been certified unfit on an ongoing basis by her general practitioner or that there were certificates to that effect (a position which might be seen as hard line given that it appears from the transcript of the proceedings before the arbitrator and what counsel said to me during the hearing of the appeal that he did not at any point during the arbitration endeavour to ascertain if the certificates were in fact in the possession of the respondent or the respondent's insurer). In these circumstances, and bearing in mind the obligation on the arbitrator to act according to equity, good conscience and the substantial merits of the case without regard to technicalities, the evidence of the appellant was not, in my view and to use the words of the appellant's counsel, a 'weightless consideration'. For these reasons I am satisfied that the arbitrator did make an error of law in failing to take into account the relevant evidence of the appellant in determining the period for which the appellant was totally incapacitated for work by reason of a compensable injury.
38 The question which flows from my above stated conclusion is whether I should, despite my finding that the arbitrator made the stated error of law, dismiss the appeal on the basis that even if the arbitrator had not made the error he would not have, and ought not to have, made a different decision. It is convenient to defer my consideration of this question until after I have dealt with the remaining grounds of appeal.
Ground1(3)
39 During the hearing of the appeal I asked the appellant's counsel to identify for me any passage in the transcript of the proceedings before the arbitrator in which the arbitrator made a comment that 'he would make ongoing orders for weekly payments subject to medical certification past 20 December 2012'. In response to my question counsel referred me to the arbitrator's statement made on 14 June 2013 that he was 'inclined to keep it to the scope of my – any orders that I make is either, as you've – on the period of liability, subject to the progress certificates and any other evidence filed because there was also a report of Dr Ingham that could expand the period of incapacity'.
40 The respondent contends that the arbitrator at no point made a statement to the effect that he would make ongoing orders for weekly payments subject to medical certification past 20 December 2012. The respondent submits that the arbitrator said nothing more than he would consider making such an order.
41 It is, with respect to the arbitrator, not entirely clear what he was intending to convey by the statement relied upon by the appellant. However, in my view the arbitrator's statement cannot fairly be construed as a positive assertion that he would make ongoing orders for weekly payments subject to medical certification past 20 December 2012. This is particularly so when the statement is read in the context of the arbitrator's statements made a few moments earlier and a few moments after the statement in question. Thus shortly before making the statement relied upon by the appellant the arbitrator said that it 'sounded like' the appellant would need to bring an application under s 217A because he 'could only deal with the evidence before [him]'. Then, immediately after making the statement relied upon by the appellant, the arbitrator said, 'I'll hear submissions on that or perhaps I'll give some consideration to Mr O'Toole's alternate suggestion that it's order subject to ongoing certification'.
42 In short, and leaving aside the question whether a failure to recall a comment can amount to an error of law, I do not think that anything said by the arbitrator during the arbitration can be interpreted as a statement that he 'would make ongoing orders for weekly payments subject to medical certification past 20 December 2012'. In my view the arbitrator's statements go no further than indicating that he would consider making an order to this effect.
43 In my opinion this ground of appeal is without merit. I would refuse leave to appeal on this ground.
Ground 3
The arguments
44 In pars 30 and 31 of the appellant's outline of submissions filed in the appeal the argument in support of ground 3 was encapsulated in these terms:
30. However, it is clear that in forming the view that he did not have sufficient evidence on which to conclude the incapacity extended past 20/12/12 … [it was] necessary, in this case, for this adverse conclusion, that there was not enough evidence to form a conclusion beyond 20/12/12, be disclosed and the appellant be given an opportunity to provide the certificates or make submissions or an application in respect of them. In essence the arbitrator left the whole issue in a state of uncertainty whereas he should have resolved the issue of the certificates before he decided as he did.
31. That failure was a breach of the duty to act in accordance with the rules of procedural fairness and constitutes an error of law.
45 As the argument in support of this ground of appeal was developed by the appellant's counsel at the hearing of the appeal, it became clear that the appellant was not really pressing the allegation that she had not been given the opportunity to provide the progress medical certificates, or make an application or submissions in respect of them. Rather, the essence of the appellant's complaint the subject of ground 3 as explained by counsel was that the arbitrator, having formed the view or at least the tentative view that in the absence of the up to date progress medical certificates he would be unable to conclude that the appellant was totally incapacitated for work for the entirety of the period in respect of which she claimed compensation, failed to comply with the rules of natural justice by failing to alert the parties to his thinking process and then definitively dealing with the issue before delivering his decision. It was submitted by the appellant's counsel that rather than leaving the issue 'up in the air' the arbitrator should, in accordance with the rules of natural justice, have 'remedied' or 'resolved' the problem by requiring the appellant to make an application to adduce the up to date certificates, hearing submissions from the parties on the application and ruling on the application. Alternatively, it was submitted that the arbitrator should have remedied or resolved the issue of the up to date certificates by simply taking it upon himself in the absence of any application to make an order or direction requiring either or both of the parties to produce the certificates.
46 In support of the appellant's primary contention that the rules of natural justice required the arbitrator to deal finally with the issue of the up to date progress medical certificates prior to delivering his decision on the appellant's claim, the appellant's counsel advanced a number of arguments.
47 The first of the arguments advanced was that the approach of the arbitrator was contrary to the purposes of the Act as set out in s 3(d) of the Act. Section 3(d) provides that a purpose of the Act is to make provision for the hearing and determination by the dispute resolution authorities of disputes between parties involved in workers' compensation matters 'in a manner that is fair, just, economical, informal and quick'.
48 Secondly, it was argued that the arbitrator had the legislative power to require the parties by order or direction to produce the certificates. It was contended that the power is given to the arbitrator by s 188(3) of the Act. Section 188(3) provides that an arbitrator 'may inform himself on any matter as the arbitrator thinks fit'. It was also argued that the legislative power of the arbitrator to order or direct the production of the certificates can be found in a combined reading of r 4(1) and r 30 of the Workers' Compensation and Injury Management Arbitrator Rules 2011 (the Rules). Rule 4 is in the following terms:
4. Relief from procedural requirements
(1) An arbitrator may, in a particular case, as the arbitrator thinks is necessary in the interests of justice or otherwise to give effect to the Act —
(a) extend or abridge a time limit for doing any thing under these rules, or the commencement of any thing under these rules; or
(b) waive compliance with any other procedural requirement or prohibition under these rules.
(2) The extension or waiver may be given even though the time for complying has passed.
(3) This rule does not apply in relation to the time limit for lodging an application for arbitration.
30. Adducing late material in evidence
(1) In any proceeding, any document, material or information not lodged within the time limits prescribed in these rules must not be adduced in evidence in the proceeding by any party to the proceeding without first obtaining the leave of the arbitrator.
(2) An arbitrator must not give leave unless —
(a) no other party is prejudiced by the relevant document, material or information being adduced in evidence; or
(b) in any event, the other parties consent to it being adduced; or
(c) in the opinion of the arbitrator it is required to be admitted in evidence in the proceeding in the interests of justice.
51 On behalf of the respondent it was contended that the arbitrator clearly did give the opportunity to the parties to make submissions in relation to the issue of the progress certificates. It was further submitted that although the arbitrator might have had the power to require the production of the up to date progress medical certificates, the failure by the arbitrator to exercise any such power and the failure by the arbitrator to require the appellant to make an application to adduce the certificates did not, in the circumstances of the present case, amount to a denial of natural justice. By way of elaboration of this submission the respondent's counsel pointed to the following matters which he argued militated against the conclusion that the alleged denial of natural justice occurred.
52 Firstly, pt 4 of the Rules (most specifically r 25 and r 29) requires the parties to an arbitration to file the evidence that they intend to rely upon at the arbitration with the application and reply respectively.
53 Secondly, in the present case the appellant attended multiple direction hearings and interlocutory hearings before the arbitrator. She therefore had ample opportunity to produce the certificates prior to the arbitration hearing (a point which was not disputed by the appellant).
54 Thirdly, given r 4 of the Rules it was at all times open to the appellant to make an application under r 30 of the Rules to adduce the certificates. However, the appellant did not make any such application despite being almost encouraged to do so by the arbitrator.
55 Fourthly, following the decision of the arbitrator it was open to the appellant to make an application under s 217A of the Act. Section 217A provides as follows:
217A. Arbitrator may reconsider decision if new information
(1) In this section —
new information means information relevant to a decision that, although available to a party at the time the decision was made, was not available to the arbitrator and, in the opinion of the arbitrator, justifies reconsideration of the matter.
- (2) If new information becomes available after an arbitrator makes a decision, the arbitrator may reconsider the decision and —
(a) vary or revoke the decision previously made; or
(b) make any further decision,
as the arbitrator considers appropriate having regard to the new information.
Analysis
57 The arbitrator was bound by rules of natural justice except to the extent that the Act allowed, expressly or by implication, a departure from those rules: the Act, s 188(1). Furthermore, there is no question that a ground of appeal alleging a denial of natural justice 'involves a question of law': Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 366 - 367. Accordingly, the issues so far as this ground of appeal are concerned are firstly whether the arbitrator did fail to do the things alleged and secondly, if the arbitrator did fail as alleged, whether the failures amounted to a denial of natural justice that was material to the arbitrator's ultimate decision and provides a proper basis for disturbing the arbitrator's decision.
58 The rules of natural justice (or procedural fairness) have two substantive requirements. The first is that a person making a claim, or against whom a claim is made, must be given a reasonable opportunity of appearing and presenting his or her case: Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571, 589; Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1, 4; Hoskins v Van Den-Braak (1998) 43 NSWLR 290, 294; Re Burton; Ex parte Lowe [2003] WASCA 306 [63]. The second is that the decision maker be a person who is disinterested or unbiased in the matter to be decided: Re Burton [63].
59 What amounts to a reasonable opportunity to present a case depends on the circumstances of the case including the nature of the jurisdiction, the subject matter that is being dealt with and the statutory provisions governing the power or jurisdiction being exercised: National Companies and Securities Commission v The News Corporation Limited [1984] HCA 29; (1984) 156 CLR 296, 311 - 312; Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 584 – 585; Re Burton [64]. However, it is clear that as a general rule a person will not be afforded a reasonable opportunity to present his or her case if he or she is not entitled to put information and submissions to the decision maker in support of an outcome that supports his or her interests: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd [1994] FCA 1074; (1994) 49 FCR 576, 591 - 592; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 [22]. This entitlement extends to the right to rebut or qualify by further information, and comment by way of submission upon, adverse material from other sources which is put before the decision maker: Commissioner for Australian Territory Revenue v Alphaone (591 - 592); Re Minister for Immigration; Ex parte Palme [22].
60 Although the rules of natural justice do not ordinarily require a decision maker to reveal a proposed conclusion to a person to whom procedural fairness must be accorded, it may be necessary, in a particular case, for the adverse conclusion to be disclosed and for the person to be given an opportunity to comment on or make submissions in respect of it, if the proposed conclusion could not reasonably have been anticipated: Apache Northwest Pty Ltd v Agostini [No 2] [2009] WASCA 231 [218].
61 Even though the argument was not pressed by the appellant's counsel, I state to avoid any uncertainty on the issue that I do not accept that the arbitrator failed to give the appellant the opportunity to adduce the up to date progress medical certificates, or to make an application and submissions in respect of them. The arbitrator brought the matter to the attention of the appellant's representative on the first day of the hearing and again on the second day. As is apparent from the above quoted portions of the transcript, on both days the arbitrator repeatedly said to the appellant's representative, in effect, that he could only decide the case on the evidence that was put before him. On 14 June 2013 the arbitrator suggested to the appellant's representative that while there was the potential for an application under s 217A it seemed to him that this would 'be an unnecessary duplication'. Indeed, during the exchange that occurred on 14 June the arbitrator, in response to the statement by the appellant's representative, 'I think we've got the progress medical certificates', actually said to the representative '… then put it to my – then put it to me'. However, rather than make any application to adduce the up to date progress medical certificates the appellant's representative's response to the arbitrator's various statements was that the arbitrator could make a decision that the appellant be paid in accordance with the certification that was before the arbitrator and order that payments continue 'subject to certification', or that the appellant would make a further application under s 217A. Further, when it came to his closing address the appellant's representative clearly had the opportunity to make further submissions on the issue and did so by repeating his contention that the arbitrator could make an order for ongoing weekly payments subject to certification. The representative also made submissions in this context (not quoted in the earlier portion of this judgment) which were to the effect that the arbitrator could infer from an interim payment order made following a conciliation conference held on 8 January 2013 that RiskCover had in its possession at the time of the conference progress medical certificates post-dating those which were before the arbitrator (ts 44 – 46). In short, in my opinion the arbitrator gave the appellant ample opportunity to provide the up to date progress medical certificates, or at least to make an application supported by submissions to adduce the certificates.
62 I turn to the appellant's argument that the arbitrator, having formed the view or at least the tentative view that in the absence of the up to date progress medical certificates he would be unable to conclude that the appellant was totally incapacitated for work for the entirety of the period in respect of which the appellant claimed compensation, failed to comply with the rules of natural justice by failing to alert the parties to his thinking process and then definitively dealing with the issue before delivering his decision.
63 It must be said that it is not entirely clear from some of the statements made by the arbitrator during the hearing precisely what he was intending to convey. However, this is not something that the arbitrator should be criticised for. In discussions between the bench and those appearing at the bar table it is often the case that thoughts are not as clearly and concisely expressed as would be the case if the statements were made with the opportunity of greater reflection.
64 As is apparent from my decision on ground 1(3), I do not consider that anything said by the arbitrator during the arbitration can be interpreted as indicating that he had arrived at a definitive conclusion as to the precise impact which the absence of the up to date progress medical certificates would have on his final decision. I am, however, despite the lack of clarity in some of the arbitrator's statements, satisfied that the arbitrator did make clear to the parties from an early stage that in the absence of the up to date progress medical certificates he might be unable to conclude that the appellant was totally incapacitated for work for the entirety of the period in respect of which the appellant claimed compensation and would therefore limit any award to the period covered by the certificates which were before him. The arbitrator in my view clearly alerted the appellant's representative to this possibility by making his repeated statements to the appellant's representative that he could only decide the case on the evidence before him, and also by his statements which in effect invited the appellant's representative to make an application to adduce the up to date progress medical certificates. Accordingly, this is not, in my view, a case in which it can be said that the arbitrator failed to accord procedural fairness to the appellant by failing to reveal and give the appellant the opportunity to comment upon a potentially adverse conclusion prior to handing down his decision.
65 Nonetheless, it follows from what I have said that I agree with the appellant's submission that the arbitrator left the issue of the progress medical certificates 'up in the air' pending his final decision on the matter. Accordingly, the question which remains is whether the arbitrator, in failing to finally resolve the matter prior to the end of the hearing in one of the ways suggested by the appellant, namely by directing the appellant to bring an application to adduce the certificates and dealing with the application or by directing the production of the certificates in the absence of an application, denied the appellant natural justice.
66 I am not satisfied that the arbitrator's failure to require the appellant to make an application to adduce the up to date progress medical certificates and to deliver a ruling on the application prior to making his decision on the appellant's claim amounted to a denial of natural justice.
67 As I have already stated, the substantive requirements of the rules of natural justice, so far as they are relevant in the present case and subject to the relevant statutory provisions governing the jurisdiction being exercised, require only that a party making a claim be given a reasonable opportunity of presenting his or her case; that is, a reasonable opportunity of putting information and submissions to the decision maker in support of an outcome that supports his or her interests. The rules of natural justice do not require a decision maker to direct a party how to run its case. They do not require a decision make to direct or order a party to bring an application to adduce evidence which the decision maker may consider to be relevant to the determination of the dispute before him or her.
68 In my view nothing in the provisions of the Act or the Rules to which I have already referred and upon which reliance is placed by the appellant alters this position. The fact that the Act provides that workers' compensation matters are to be determined 'in a manner that is fair, just, economical, informal and quick' and that an arbitrator 'may inform himself on any matter as the arbitrator thinks fit' does not provide a basis for concluding that under the Act the rules of natural justice require an arbitrator to go beyond giving a party making a claim a reasonable opportunity of presenting his or her case to such an extent as to impose on the arbitrator an obligation to require a party to make an application to adduce evidence which the arbitrator considers may be relevant to the claim. The same can be said for the provisions in the Rules which give to an arbitrator, upon an application being made by a party, the power in certain specified circumstances to grant leave to the party to adduce evidence outside of the time limits imposed by the Rules.
69 I do not consider that the fact that the appellant's representative was a registered agent under the Act as opposed to a legal practitioner provides a basis for concluding that the arbitrator was required to direct the applicant to make an application to adduce the up to date progress medical certificates. To arrive at such a conclusion would in my view be inconsistent with the fact that the Act expressly provides for parties to be represented by registered agents such as the appellant's representative; that is, by persons who by reason of qualification or experience or both have sufficient knowledge of the workers' compensation jurisdiction to represent a party effectively.
70 I turn to the appellant's alternative argument that the rules of natural justice required or obliged the arbitrator, even in the absence of an application by the appellant, to order or direct the production of the up to date progress medical certificates. This argument was, of course, contingent on the proposition that the arbitrator had the power under the Act and the Rules to require the production of the certificates.
71 I am not persuaded that the arbitrator did in fact have the legislative power to make any such order or direction. In my view the words of s 188(3) which permit an arbitrator to 'inform himself on any matter as he thinks fit' cannot be interpreted to mean that the arbitrator may direct a party to produce evidence as part of its case. Further, r 30 does no more than provide an arbitrator with the power, in certain circumstances, to give leave to a party who is seeking to adduce any document, material or information outside of the time limits prescribed by the Rules to do so. The words of the rule do not, in my view, empower an arbitrator to require a party to adduce evidence as part of its case.
72 Even if contrary to my above expressed view the arbitrator did have the legislative power to direct or order the appellant to produce as part of its case the up to date progress medical certificates, I do not accept that his failure to exercise that power in the circumstances of the present case amounted to a denial of natural justice. The appellant prior to the arbitration hearing had numerous opportunities to file the updated progress medical certificates as part of her application. Further, and as I have already said, during the arbitration the arbitrator in effect invited the appellant's representative to apply to adduce the certificates as part of the appellant's case. The appellant's representative, who was a registered agent and was therefore appropriately qualified to represent the appellant, clearly understood the issue being raised by the arbitrator. In addition, s 217A gives to a party the ability to seek to put before an arbitrator material which the party, for whatever reason, failed to adduce prior to the time at which the arbitrator delivered his or her decision. In other words a failure by an arbitrator to direct a party, who does not apply to adduce evidence, to adduce that evidence during an arbitration hearing does not have the inevitable result that the party will be precluded from relying on the evidence in support of the party’s case. In these circumstances I do not accept that a failure by the arbitrator to direct or order the production of the certificates, even if he had the power to do so, resulted in the appellant being denied natural justice.
73 The ground of appeal, alleging as it does a denial of natural justice, involves a question of law. I would therefore grant leave to appeal but, for the reasons I have stated, dismiss the appeal.
The established error – should the appeal be allowed?
74 I have found that the arbitrator did make the error of law alleged in ground 1(2). I now return to the question whether I should, despite my conclusion that the arbitrator made the error of law, dismiss the appeal on the basis that even if the arbitrator had not made the error he would not have, and ought not to have, made a different decision.
75 It may be, as was argued by the respondent's counsel, that the arbitrator, even if he had taken into account the appellant's evidence and found that the appellant had from the date of the relevant injury to the date of the hearing been certified as unfit for work by her general practitioner, would still have found that the appellant's total incapacity for work came to an end on 20 December 2012. However, I cannot be certain that this would have been the outcome. This is particularly so given that the arbitrator 'accepted the efficacy' of the progress medical certificates that were before him and relied on them in conjunction with the expert evidence of Dr Ng and Dr Manners to come to the conclusion that that the appellant was totally incapacitated for work up until 20 December 2012: reasons for decision [115].
76 The fact that I cannot be certain that the arbitrator would have arrived at the decision which he did even if he had not erred by failing to take account of the appellant's relevant evidence does not of itself necessitate me allowing the appeal. It is open for me to review the arbitrator's decision as to the period of the appellant's total incapacity taking into account the evidence of the appellant which I have found the arbitrator should have considered and then, if on conducting that review I arrive at the same decision as the arbitrator as to the period of the total incapacity, dismiss the appeal.
77 Neither of the parties actively urged me, if I found any of the alleged errors established, to review the arbitrator's decision and make my own determination as to whether the evidence adduced at the arbitration established that the appellant was totally incapacitated for any of the period 21 December 2012 to 21 March 2013. Nonetheless, in light of my finding that the arbitrator erred in failing to take account of the appellant's evidence that her general practitioner had continued to certify her as totally incapacitated for work since 20 December 2012, I have considered whether I should carry out my own review of the arbitrator's decision that the appellant was only incapacitated for the period 2 October 2012 to 20 December 2012. Ultimately I have decided that this would not be the proper course to take and that it is appropriate to remit the matter to the arbitrator. The arbitrator is a specialist in the field of worker's compensation. It seems to me that he is best placed to decide if evidence to the effect that the appellant has been certified as totally incapacitated for work by her general practitioner for the entirety of the period 2 October 2012 to 13 March 2013 (and beyond) is, when considered in conjunction with the expert evidence adduced, sufficient to establish that the incapacity extended for any or all of the period 21 December 2012 to 13 March 2013. In addition, remitting the matter to the arbitrator will provide the appellant with the opportunity to make an application to the arbitrator under s 217A of the Act to put the updated progress medical certificates before him.
Orders
78 I will hear the parties as to the precise terms of the orders that I should make to give effect to my decision. However, the orders that I would propose to make are as follows:
1. Leave to appeal is granted.
2. The appeal is allowed.
3. The matter is remitted to the arbitrator to make a finding, in accordance with this judgment, as to whether the appellant was totally incapacitated for any period as and from 21 December 2012 to 13 March 2013 and, if so, for what period and to make any consequential orders relating to that finding.
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