Gleeson v Health Services Union NSW - [2024] NSWPICPD 3

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Gleeson v Health Services Union NSW [2024] NSWPICPD 3
APPELLANT:	Sarah Gleeson
RESPONDENT:	Health Services Union NSW
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-W4753/22
PRESIDENTIAL MEMBER:	Acting Deputy President Michael Perry
DATE OF APPEAL DECISION:	25 January 2024
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 13 January 2023 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – Whether the appellant’s late claim for compensation was occasioned by ignorance, mistake or other reasonable cause – factual findings – application of principles in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr G Young, counsel
Bartley Lawyers
Respondent:
Ms L Goodman, counsel
Gair Legal
DECISION UNDER APPEAL
MEMBER:	Mr John Isaksen
DATE OF MEMBER’S DECISION:	13 January 2023

INTRODUCTION AND BACKGROUND

Sarah Gleeson, the appellant, was employed as a union organiser by the respondent, Health Services Union NSW, between March 2017 and 12 December 2019. She alleges that she was exposed to bullying, harassment, excessive workloads, and unwarranted actions from other employees, which caused her to sustain a psychological injury in the course of that employment.
The appellant filed an Application to Resolve a Dispute (ARD) claiming various compensation payments under the Workers Compensation Act 1987. The respondent’s insurer has disputed these claims under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) on the grounds that the appellant did not sustain injury in the course of her employment, the employment was not the main contributing factor to any disease injury, and that she had not given notice of injury or made a claim for compensation within the time prescribed under ss 254 and 261 of the 1998 Act.
In a Certificate of Determination and Statement of Reasons dated 13 January 2023,[1] the Member firstly dealt with the notice of injury and claim questions, finding that although the appellant did not give notice of injury as soon as possible after the injury happened, the respondent was not prejudiced, and the appellant therefore satisfied the special circumstances in s 254(3)(a) of the 1998 Act.
[1] Gleeson v Health Services Union NSW [2023] NSWPIC 15 (reasons).
The Member then determined the s 261 issue - whether the appellant could recover compensation despite not making a claim for compensation within six months after the injury happened. He determined she did not make a claim within six months after the injury happened, and that she has not been able to obtain the benefit of the exceptions provided by s 261(4) of the 1998 Act. She brings this appeal against that decision.

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 provides:
“(3) 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 and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3; the documents before me, and the submissions by the parties that the appeal can be determined on the basis of these documents, I am satisfied I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing, and that this is the appropriate course.

THRESHOLD MATTERS

There is no dispute that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met. Both parties have asserted the Member’s decision was not interlocutory.

THE EVIDENCE

The evidence before the Member comprised the ARD, Reply, and an Application to Admit Late Documents from the respondent dated 20 October 2022. It is only necessary and appropriate to deal with the evidence relating to the s 261 issue. That is the sole issue left on this appeal.
There is no issue about the Member correctly recording and summarising the evidence. As such, I believe it appropriate to refer to the evidence in the context of a more detailed summary of the Member’s reasons.

THE MEMBER’S REASONS

The Member noted the appellant’s statement of 23 March 2022 that “her doctors were supportive of her separation from the respondent”, as this would assist and allow her to focus on her health. The Member noted the relevant part of that statement in this regard as follows:
“As best as I can recall, my general practitioner at that point, I believe it was Dr Brittain, made a passing comment of not recommending I pursue a workers compensation claim because it would not be in the interests of my health to do so. I am not sure exactly how that recommendation from my GP came about, but again I was very focused on that time to feel better and put the HSU behind me.”
The Member noted the appellant stated she was in contact with a work colleague, Karen Rogers, in early to mid-2021, and that Ms Rogers encouraged her to look into making a claim considering the ongoing effects of her injury. He also noted the appellant stated Ms Rogers had experienced bullying and harassment while employed with the respondent and had an accepted workers compensation (WC) claim for psychological injury, and that Ms Rogers gave her the details of a solicitor, James Bartley.
The Member noted the appellant’s statement that she conferred with Mr Bartley on 22 June 2021, when he advised her about the WC scheme and the need to have a claim form lodged within six months of the date of injury; and that this was the first time she received legal advice in relation to entitlement to a WC benefit and any timeframes for the commencement of a claim. He also noted the appellant’s statement that she obtained a certificate of capacity from Dr Brittain, general practitioner (GP), on 25 June 2021 and then made the claim.
The Member then turned to a summary of the appellant’s further statement of 7 July 2022, when she stated she was specifically directed not to become involved with or provide advice regarding WC claims while she was employed as an organiser with the respondent; and that organisers were not provided with training or advice in relation to the WC scheme in NSW. The system was that an organiser would provide a business card with a phone number for ‘Member Services Division’ if a union member approached an organiser with a potential claim regarding workplace injury.
The Member noted the appellant stating that organisers were told WC was a complex scheme, and if she was found to be providing such advice “she understood there was a concern of significant risk to the respondent of being sued for negligence if something went wrong”.[2] The Member noted the appellant stating she completed the ‘equal opportunity and law’ course in 2016 while undertaking a law degree; but that this course was about Queensland and Federal jurisdictions with a focus on national employment standards.
[2] Reasons, [42].
The Member referred to the clinical notes from Ms Martha Knox-Haly, psychologist, in relation to the appellant consulting her on 3 February 2020, including this entry:
“She has also discovered that there was a workers compensation claim lodged by Karen Rogers which cited Ben as being responsible for bullying and harassment, which has also involved complaints of assault by Ben …”.
The Member also referred to the following passage in the clinical notes of Ms Knox-Haly with respect to the appellant’s attendance on 30 March 2020:
“In a very positive development, [the appellant] … represented a lawyer from Minter Ellison in a performance management meeting … [The appellant] did a positive job and the lawyer suggested that they open a business around advising people who are being bullied in the workplace. They have teamed up with a CFO providing advice on the financial side, this is beginning to take off”.
The Member also extracted the following passage from the clinical notes of Ms Knox-Haly with respect to the appellant’s attendance on 20 July 2020:
“She is continuing to pursue her bok [sic, book] writing her legal studies, and the idea is to set up an employment advocacy consultancy.”
The Member further noted the clinical notes of Ms Knox-Haly included copies of the following text messages between her and the appellant:
“Mon, 20 Jul, 14:50
Hi Martha, I already have two websites related to employment … pinkcollarworkers.com.au and the other [is] pinkcollarworkers.org.a [sic]”
The Member noted the following entry by Dr Brittain with respect to the presentation on 21 July 2020:
“Subjective: … needs to travel as advocate
Objective: … appears very on the ball
Assessment: … needs facilitation in this new business
Plan: … works as a consultant in advocacy for clients who are exposed to psychological harm in the workplace from bullying and harassment. She is required to commute between Wollongong and Sydney to provide this healthcare.
Actions: Medical Certificate given”.
The Member then noted that Dr Brittain provided a medical certificate on 21 July 2020 stating that the appellant “works as a consultant in advocacy for clients who are exposed to psychological harm in the workplace from bullying and harassment”.
The Member also noted this entry by Dr Brittain on 13 October 2020:
“new mental health care plan
will be getting the police to advise on the nature of the touch and she experienced
I don’t think a WC case is advisable”.
The Member commenced his “Determination” by setting out the terms of s 261(1), (4), and (6) of the 1998 Act. He noted at [52] of the reasons the submission that the appellant’s failure to make a claim within six months was overcome by the failure being occasioned by ‘ignorance’ and/or ‘other reasonable cause’. He also noted (at [53] of the reasons) the appellant conceded she had experience and knowledge in employment law and was not ignorant of her ability to make a claim, but was ignorant of the need to make a claim within six months of the injury date.
The Member also noted (at [54] of the reasons) the submission that the ‘other reasonable cause’ in the failure to make a claim within six months related to the advice given by Dr Brittain that the appellant should not pursue a WC claim but try and move on with her life.
He also noted (at [55] of the reasons) the respondent’s submission that the appellant was aware of the requirements to make a claim, and her assertion that she was not aware of the specific time limits is not enough to satisfy failure occasioned by ignorance in s 261(4).
The Member referred to Gregson v L & MR Dimasi Ltd[3] and acknowledged the relevance of the following passage from Burke CCJ in relation to ‘ignorance’ as applied to s 65(13) of the 1998 Act:
“The ignorance referred to is ignorance of the rights deriving from the Act and the obligations imposed by it. Effectively the Court is required to be satisfied that the applicant was unaware of those rights and obligations and thus failed to make the requisite claim.”
[3] [2000] NSWCC 47; 20 NSWCCR 520, [61].
The Member noted the appellant had worked as an organiser with The Services Union in Queensland between April 2013 and March 2015, then as an organiser with the respondent from March 2017 to December 2019. He said the appellant “would at the very least have known from her several years of experience as a union organiser that if a worker sustained an injury at work and lost wages or incurred medical expenses as a result of that injury then a compensation claim should be made.”[4]
[4] Reasons, [60].
The Member then found that he did “not accept that [the appellant] was ignorant of her rights and obligations to make a claim” and that she “did not seek to argue otherwise”.[5] He then observed that the “reliance … on ‘ignorance’ is limited to the quite narrow and very specific claim that [the appellant] did not know of the time limit for making a claim for compensation.”[6]
[5] Reasons, [61].
[6] Reasons, [62].
The Member then set out a relevant passage from Albury Real Estate Pty Ltd v Rouse[7] as support for the propositions that ‘mistake’ (including of fact, law, or mixed fact and law) can fall within s 261(4), and that ‘ignorance’ includes a case where the worker does not know of the need to give the notice within the specified time.
[7] [2006] NSWWCCPD 139 (Rouse), [29].
The Member observed that the statements in Rouse (and other authorities referred to in that case) would “arguably be sufficient” for the appellant to overcome the failure to make a claim within six months of the injury. But he then went on to say that “each case depends on its own facts, and the worker bears the onus of overcoming the limitation imposed”.[8]
[8] Reasons, [63].
The Member then went on to say that the acceptance of the evidence of a worker who claims to be ignorant of the time limit is crucial – and “on my review of the evidence in this dispute I find that I cannot accept the very limited and specific claim of ignorance made by [the appellant] in her effort to overcome s 261(1).”[9]
[9] Reasons, [64].
The Member then made these statements and findings at [65] of the reasons:
“[The appellant] contends that although she worked as a union organiser, she did not provide advice in regard to workers compensation claims, and she had been directed by the respondent to refer a member with such an enquiry to a different section of the union. However, even though that may have been the situation while she was employed with the respondent, the record made by Dr Brittain on 21 July 2020 provides compelling evidence that [the appellant] would have had knowledge by at least that time of the requirements for making a workers compensation claim for a psychological injury. The record made by Dr Brittain was not merely that [the appellant] could assist people with employment issues, but she had particular expertise in advocating for clients who had been exposed to psychological harm from bullying and harassment in the workplace.” (appellant’s emphasis)[10]
[10] See appellant’s submissions, [2.8.5].
The Member then acknowledged the well settled principle “that clinical notes, especially from general practitioners, should be approached with caution”[11], and said:
“Nonetheless, the record made by Dr Brittain is quite specific and the same details are repeated in a … certificate issued by Dr Brittain on that same date. The conclusion that can be drawn … is that those quite specific details were provided to Dr Brittain by [the appellant]”.[12]
[11] Reasons, [66].
[12] Reasons, [67].
The Member noted the appellant’s statement that she worked from late 2020 for about 1.5 months doing claims management duties, but had to stop as she was not coping because of the injury, but then observed that the appellant:
“ … provides no evidence of any advocacy work she undertook for employees who sustained psychological harm due to bullying in the workplace … despite the record made by Ms Knox-Haly on 30 March 2020 that her business of advising people who were being bullied in the workplace was ‘beginning to take off’, and the record made by Dr Brittain on 21 July 2020 that [she] worked as an advocate for clients who were exposed to psychological harm from bullying in the workplace.”[13]
[13] Reasons, [68].
The Member also noted there was no evidence from the appellant regarding the “pinkcollarworkers” website/business.
The Member noted the entry made by Ms Knox-Haly on 20 July 2020, that the appellant had the “idea” of setting up an employment advocacy consultancy, suggesting she had yet to start this business. He then noted “[h]owever, there is other evidence which I have already referred to [which] strongly supports a finding that from late March 2020 [she] had expertise in advocating for employees who had been subject to bullying and harassment in the workplace.”[14]
[14] Reasons, [70].
The Member said the appellant bore “the onus of proof on this quite specific excuse for the delay …” and he was not satisfied she had adequately “addressed the records made by her medical providers of the expertise she claims to have had in advocating for workers who had suffered psychological harm in the workplace.”[15]
[15] Reasons, [72].
The Member then turned to the matter of “reasonable cause” in s 261(4), noting that this term was considered, including by reference to earlier authorities, in Rouse, where Roche ADP, as he then was, (at [35]) agreed with earlier formulations of the relevant test that it is:
“the ‘mixture of facts, circumstances and motive which constitute the explanation of the omission’ that must be reasonable. If the explanation is ‘reasonable’ and if the failure to claim within six months was occasioned by that ‘cause’, then the subsection has been satisfied.”
The Member stated that the reasonable cause relied upon by the appellant was “the advice given by Dr Brittain that [she] should not pursue a workers compensation claim but try and move on with her life”, but that the appellant did not identify with any precision when this advice was given to her. He also noted the appellant stated this advice was given soon after she ceased employment with the respondent, and extracted the relevant parts of her statement, including the appellant saying, as “best I can recall, my general practitioner … I believe it was Dr Brittain, made a passing comment of not recommending I pursue a … claim”.[16]
[16] Reasons, [77]–[78].
The Member noted that Dr Brittain did not provide a report “which might have addressed this issue”.[17] He did note that Dr Brittain wrote an entry on 30 October 2020: “I don’t think a WC case is advisable”, but observed this was almost a year after resignation. Ultimately, the Member considered it unsafe to draw an inference or conclusion as to what was meant by this entry in the absence of an explanation from Dr Brittain.
[17] Reasons, [79].
The Member noted the records of Ms Knox-Haly on 20 July 2020 showed the appellant had attended on the police to make a statement. He also noted the appellant stated that in October 2020 she made attempts to approach the police regarding her allegations of sexual harassment, and that Dr Brittain noted (on 13 October 2020) that the appellant was planning to contact the police. Again, the Member noted there was no explanation from the appellant as to why she did not also make a claim around this time.
The Member noted (at [87]–[88] of the reasons) that “it may be that [she] was not psychologically or emotionally in a position to pursue a claim over that 18 month period”, but no such evidence was provided by the appellant or her treating medical practitioners. He added that there remained a significant contrast between the appellant being able to initiate a complaint of sexual harassment in October 2020, participate in a subsequent investigation, and also make a complaint to the police, but not have the motivation to bring a WC claim at around that that same time, and that no explanation for this was provided by the appellant.
The Member stated that if the appellant was following medical advice not to make a claim on health grounds, she had offered no explanation as to why, in October 2020, she “took these other measures which brought on confrontation between herself and the respondent.”[18]
[18] Reasons, [89].
The Member also noted (at [90] of the reasons) that the appellant’s evidence as to the reasons for her ultimate decision to make a claim in late June 2021 “is not based on her evidence of any medical advice she received, but rather the encouragement given to her by Karen Rogers.” The Member did consider the statement of Ms Rogers dated 17 September 2021, noting that Ms Rogers made no mention of conversations with the appellant in relation to Ms Rogers encouraging the appellant to bring a claim.

The Member noted at [91] of the reasons the appellant’s submission that the gap in the period of time from the injury to the making of the claim “is narrowed when [the appellant’s] symptoms worsen after she ceases treatment with Ms Knox- Haly … she ceased seeing Ms Knox-Haly in mid-2020, and this is supported by the clinical notes. The Member considered this submission did not assist the appellant’s case as it was still another 11 months before the claim was made, “with no explanation for this delay if there was a deterioration in her psychological condition following the cessation of treatment by Ms Knox-Haly.”[19]
[19] Reasons, [92].
The Member found that the reason given by the appellant for her delay in making the claim, that she should try and improve her psychological health after ceasing her employment, “is not a reasonable cause for that delay when measured objectively against the circumstances and motivations of [the appellant] between the time she ceased employment with the respondent in December 2019 and … making a claim for compensation in late June 2021.”[20]
[20] Reasons, [93].
The Certificate of Determination issued on 13 January 2023 records:
“The Commission determines:
1. The [appellant] can recover compensation because the respondent has not been prejudiced by the [appellant’s] failure to give notice of injury as soon as possible after the injury happened.
2. The [appellant] cannot recover compensation because a claim for compensation was not made within six months after the injury happened and the [appellant] has not established that the failure to make a claim for compensation within the time required by s 261(1) of the Workers Compensation Act 1987 was occasioned by ignorance or other reasonable cause.”

GROUND OF APPEAL

The appellant identifies one ground of appeal: “Error of fact and law in finding the appellant did not discharge her onus in proving either ‘ignorance’ (or ‘mistake’) of the timeframes in which to make a workers compensation claim in New South Wales” (the appeal ground).

LEGISLATION

The essential issue of this appeal relates to s 261 of the 1998 Act, which relevantly provides:
“(1)    Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened …
…
(4)     The failure to make a claim within the period required by this section is not a bar to the recovery of compensation if it is found that the failure was occasioned by ignorance, mistake, absence from the state or other reasonable cause …
…
(6)     If an injured worker first becomes aware that he or she has received an injury after the injury was received, the injury is for the purposes of this section taken to have been received when the worker first became so aware.”

SUBMISSIONS

The appellant submits that the ground of appeal essentially hinges on her credit and the “significant distinction between her knowledge of employment law as opposed to technical and esoteric timeframes of the [NSW] Workers Compensation system”[21] and that the Member found her evidence of ignorance or mistake was unreliable. The appellant also points to the Member’s statement (at [65] of the reasons) noting her contention that although she worked as a union organiser, she did not provide advice regarding WC claims, and had been directed by the respondent to refer a union member with such an enquiry to a different section of the union. She set out, with emphasis, [65] of the Member’s reasons (set out at [31] above).
[21] Appellant’s submissions, [2.8.3].
The appellant says the Member “misconceived and overstated the significance”[22] of this record, that workplace bullying/harassment is not exclusively dealt with by the WC system in NSW, and that employment/equal opportunity laws – as distinct from WC – also deal with workplace bullying and sexual assault matters.
[22] Appellant’s submissions, [2.8.6].
The appellant submits the Member erred in fact and law by finding reference to “advocacy … [in] … workplace … bullying and harassment” in a clinical entry was compelling evidence of knowledge of WC timeframes in NSW. The appellant says “advocacy” in an industrial setting may encompass many things other than specific knowledge of the WC timeframes in NSW, including a negotiated outcome for a return to work, unfair dismissal, and an industrial award for a transfer away from the alleged bullying. The appellant says it is not axiomatic that “advocacy” in workplace bullying and harassment claims must mean the appellant had knowledge of the WC timeframes.
The appellant also says the Member’s reference (at [68] of the reasons) to her “doing some claims management work from February 2020” failed to put this in context as she did that for Procare “which is not a scheme agent for the [NSW] workers compensation system”.[23]
[23] Appellant’s submissions, [2.8.11].
The appellant also says the Member erred by inferring (at [69] and [70] of the reasons) that the entry of Ms Knox-Haly (psychologist) and the appellant’s “pinkcollarworkers.org.au” website meant she had knowledge of the WC timeframes in NSW. She says this repeats the error in finding her advocacy in workplace bullying matters must have involved the WC law in NSW.
Finally, the appellant puts that the Member failed to consider the appellant’s evidence that her work experience and studies were limited to employment law and equal opportunity, and that there was no basis to reject or find this issue “without a challenge to the appellant’s credit under cross examination on ‘ignorance’ or ‘mistake’.”[24]
[24] Appellant’s submissions, [2.8.13].
The respondent submits the Member noted the appellant conceded she had experience and knowledge in employment law and was not ignorant of her ability to make a claim but was ignorant of the need to make a claim within six months after the injury happened.
The respondent describes the appellant’s case as a “very limited and specific claim of ignorance”[25], and one which the Member did not accept.
[25] Respondent’s submissions, [5].
The respondent says the Member reviewed all the evidence on the issue, including the appellant’s completion of a course in ‘Equal Opportunity and Law’ in 2016 while undertaking a law degree. The respondent says the Member was entitled to come to the conclusions he arrived at, and no error has occurred.
The respondent also says the Member conducted a careful review of the evidence and did not overstate Dr Brittain’s 21 July 2020 note, pointing out the Member noted that Dr Brittain repeated the same details of this note in a medical certificate issued the same day.
The respondent also points to the Member noting the absence of evidence from the appellant about the advocacy work she undertook for employees who had sustained psychological harm due to bullying in the workplace, despite the 21 July 2020 note from Dr Brittain and a note on 30 March 2020 from Ms Knox-Haly that her business of advising people who were bullied in the workplace was “beginning to take off”.
The respondent also notes the Member stating that in the absence of any evidence about the appellant’s “pinkcollarworkers” website and business, he could infer that the appellant had knowledge of the WC timeframes in NSW.
THE RESPONDENT ALSO NOTES THE MEMBER’S CONCLUSION THAT HE WAS NOT SATISFIED THE APPELLANT HAD ADEQUATELY ADDRESSED THE RECORDS MADE BY HER MEDICAL PROVIDERS IN RELATION TO HER EXPERTISE THAT SHE CLAIMED TO HAVE HAD IN ADVOCATING FOR WORKERS SUFFERING PSYCHOLOGICAL HARM IN THE WORKPLACE; AND THAT THE APPELLANT PROVIDED NO EXPLANATION AS TO WHY SHE DID NOT ACT UPON THE KNOWLEDGE SHE WOULD HAVE HAD AS AN ADVOCATE IN A QUITE SPECIALISED AREA OF EMPLOYMENT LAW TO MAKE A CLAIM FOR COMPENSATION.
THE RESPONDENT SAYS THAT IN THE ABSENCE OF EVIDENCE TO THE CONTRARY, THE ONLY INFERENCE AVAILABLE TO THE MEMBER WAS THAT THE APPELLANT HAD THE REQUIRED KNOWLEDGE BECAUSE OF THE WORK SHE HAD DONE FOR THE RESPONDENT AND ALSO BECAUSE OF THE ADVOCACY WORK SHE DID AFTER HER RESIGNATION FROM THE RESPONDENT.

THE NATURE OF AN APPEAL PURSUANT TO SECTION 352(5) OF THE 1998 ACT

This appeal is brought pursuant to s 352(5) of the 1998 Act. This section provides:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion and to the correction of any such error. The appeal is not a review or new hearing.”
In Raulston v Toll Pty Ltd,[26] Roche DP (at [19]) applied Whiteley Muir & Zwanenberg Ltd v Kerr[27] as to the nature of the appeal process pursuant to s 352(5) of the 1998 Act.
“(a)    A [member], though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [member] that it can be said that [the] conclusion was wrong’.
(b)     Having found the primary facts, the [member] may draw a particular inference from them. Even here the ‘fact of the [member’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the [member] was wrong.
(c)     It may be shown that [a member] was wrong by ‘showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by [the member] is so preponderant in the opinion of the appellate court that the [member’s] decision is wrong.”
[26] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
[27] (1966) 39 ALJR 505, [506].
In Northern NSW Local Health Network v Heggie,[28] Sackville AJA, Basten and Ward JJA agreeing, stated (at [72]):
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable …”
[28] [2013] NSWCA 255 (Heggie).

DISCUSSION

The appeal ground frames the issue requiring resolution firstly by acknowledging that the appellant bears and needs to discharge the onus in proving either ‘ignorance’ (or ‘mistake’), and secondly by identifying the relevant subject matter, namely, “the timeframes in which to make a workers compensation claim in [NSW]”.[29] This is consistent with the Member’s statement (at [61] of the reasons) that he did not accept the appellant was ignorant of her obligations to make a claim for compensation, and she “did not seek to argue otherwise”. He then noted the appellant’s reliance was thus “limited to the quite narrow and very specific claim that [she] did not know the time limit on making a claim”.[30]
[29] Appellant’s submissions, [2.8.2].
[30] Reasons, [62].
The Member took into account the proposition (in Rouse) that ‘ignorance’ includes cases where a worker is unaware of the timeframes to make a claim, but added that “each case depends on its own facts and the worker bears the onus”, and “on my review of the evidence … I cannot accept the very limited and specific claim of ignorance made by [the appellant] in her effort to overcome s 261(1)”.[31] In my opinion, this finding was open to him, for the reasons following.
[31] Reasons, [63]–[64].
One of the appellant’s main points appears in the paragraph immediately following (at [65] of the reasons) and set out at [31] above). At first blush, the 21 July 2020 record of Dr Brittain appears to fall short of providing “compelling” evidence that the appellant “would have had knowledge” of “the requirements for making” a WC claim. But when the Member’s decision is read in context and as a whole, this is not necessarily so. Importantly, the Raulston and Heggie principles (at [64]–[65] above) mean I am not entitled to interfere with the drawing of a particular inference once the primary facts have been found (in the absence of error).
In my view, a fair reading of the reasons at [65] shows the Member’s statement that the appellant “would have had knowledge … of the requirements for making a workers compensation claim” contemplates all relevant primary facts he took into account – not only Dr Brittain’s 21 July 2020 entry. The Member does refer to that entry providing “compelling evidence” of that knowledge, but also refers to the appellant’s reference to her work as a union organiser, noting her argument that she did not provide advice regarding WC claims and had been directed to refer members with such enquiries to a different section of the union. As further context, the Member had also (at [60] of the reasons) referred to the appellant’s work as a union organiser with both the Queensland Services Union, and the respondent.
The appellant submits “the Member misconceived and overstated the significance” of Dr Brittain’s 21 July 2020 entry, that “[w]orkplace bullying and harassment is not exclusively dealt with through the [NSW] workers compensation system”, and that employment/equal opportunity laws “as distinct from workers compensation” may also deal with workplace bullying and sexual assault.[32] But the Member dealt with this. He said the “compelling” aspect arose from the fact that Dr Brittain’s entry “was not merely that [the appellant] could assist people with employment issues” but because she had “particular expertise in advocating for clients who had been exposed to psychological harm from bullying and harassment in the workplace”[33] (emphasis added).
[32] Appellant’s submissions, [2.8.6]–[2.8.8].
[33] Reasons, [65].
This passage also clearly shows the Member considered, but did not totally accept, the appellant’s argument that “although she worked as a union organiser, she did not provide advice in regard to workers compensation claims, and she had been directed by the respondent to refer a member with such an enquiry to a different section of the union”.[34] He was only prepared to say that, while this may have been the case while she was employed by the respondent, by the time of Dr Brittain’s entry, she had a particular expertise in advocating for clients who had been exposed to psychological harm from bullying and harassment in the workplace, and this provided evidence that the appellant would have had relevant knowledge at least by that time. He also clearly enough, by multiple references to there being no other evidence about this business and/or the pink-collar workers business, stated that he was concerned about there being no other evidence to contradict the content of the relevant records of Ms Knox-Haly and Dr Brittain on 30 March 2020, 20 July 2020 and 21 July 2020.
[34] Reasons, [65].
In my opinion, and whether or not one would come to a different view, this was reasonably open to the Member, not erroneous, and not a situation where an available inference in the opposite sense to that chosen by him was so preponderant as to make his decision wrong. Just because the appellant did not provide advice in relation to WC claims in the NSW system as part of her work duties, and even if she had been directed to refer members with such an enquiry to a different section of the union, it does not at all necessarily follow that she does not have knowledge, at least to some extent, of aspects of that system, in particular, important or major aspects such as limitation periods for making claims. All relevant circumstances need to be taken into account in deciding whether or not a worker has proved that the failure to make a timely claim was occasioned by ignorance. In my opinion, the Member did take all circumstances into account and did not err in doing so.
The appellant says workplace bullying and harassment “is not exclusively dealt with” through the WC system in NSW, and employment/equal opportunity laws, as distinct from WC laws in NSW, may also deal with workplace bullying and sexual harassment. So much can be accepted. But again, it does not follow that the WC system in NSW does not constitute part of workplace bullying and harassment laws, nor that this provides any proof or evidence that a worker did not know of the time limitations to bring a WC claim in the NSW system – and again, it was the appellant who carried the onus to prove this. Moreover, the Member was concerned about the apparently accurate records of the appellant having a “particular expertise” in relation to assisting clients who had been exposed to “psychological harm” from bullying and harassment in the workplace.
The comments at [65] of the reasons also need to be read in the context of other content appearing both before and after that paragraph. Firstly, the Member noted that the appellant accepted she had “experience and knowledge in employment law from her work as a union organiser and was not ignorant of her ability to make a claim”,[35] thus describing the ignorance claim as “limited”, “quite narrow” and “very specific”.[36]
[35] Reasons, [53].
[36] Reasons, [62].
He also took into account (at [60] of the reasons) the work history as a union organiser with The Services Union between April 2013 and March 2015 and a union organiser with the respondent for nearly three years from March 2017. He said “[she] would at the very least have known from her several years of experience as a union organiser that if a worker sustained an injury at work and lost wages or incurred medical expenses as a result of that injury then a [workers] compensation claim should be made.”[37] In my opinion, this finding was open to him.
[37] Reasons, [60].
His comments at [65] of the reasons also need to be viewed in the context of his comments at [68] about the claims management work the appellant did for around six weeks in February 2020. The appellant submits “the Member failed to put that evidence into context as the appellant did that work for Procare … which is not a scheme agent”[38] for the WC system in NSW. I do not accept this submission. It places a too low and restricted bar not contemplated by s 261(4). It cannot necessarily be the case that a worker’s failure to make a timely claim is excused by simply demonstrating they do not have training and/or education and/or work experience involving s 261 of the 1998 Act. Again, all circumstances had to be taken into account in deciding whether the failure to make a timely claim was occasioned by the appellant’s ignorance or mistake, or whether she proved or actually persuaded the Member of it.
[38] Appellant’s submissions, [2.8.11].
In considering these matters, the Member was entitled to take into account the appellant’s claims management work from late February 2020 for about one and a half months. In my opinion, he would have fallen into error if he had refused to do so on the basis that Procare is not a scheme agent for the WC system in NSW. He noted (at [68] of the reasons) the argument that the appellant had to stop that work as she was not coping due to her psychological injury, but then stated:
“[she] provides no evidence of any advocacy work she undertook for employees who sustained psychological harm due to bullying in the workplace … despite the record made by Ms Knox-Haly on 30 March 2020 that her business of advising people who were being bullied in the workplace was ‘beginning to take off’”.
Confirming the context, the Member immediately went on (at [68] of the reasons) to repeat a specific reference to Dr Brittain’s 21 July 2020 entry that the appellant “worked as an advocate for clients … exposed to psychological harm from bullying in the workplace”. Then, (at [70] of the reasons), he noted Ms Knox-Haly’s 20 July 2020 entry that the appellant had the “idea” of setting up an employment advocacy consultancy, suggesting such business had yet to be started. But he clarified that he still believed the appellant was not ignorant of the relevant timeframes before that time, referring to the “other evidence which I have already referred to [which] strongly supports a finding that from late March 2020 [the appellant] had expertise in advocating for employees who had been subject to bullying and harassment in the workplace.”[39] I have emphasised these words to confirm my view that the Member was particularly impressed by this aspect of Dr Brittain’s 21 July 2020 entry in terms of analysing whether or not the appellant’s failure to make a timely claim was occasioned by ignorance (or mistake).
[39] Reasons, [70].

The passage (at [70] of the reasons) is also important to the overall analysis because the Member confirms, despite the reference to an “idea … to set up” an “employment advocacy consultancy” in the entry of Ms Knox-Haly on 20 July 2020, that his view about the appellant’s lack of ignorance of relevant timeframes is also supported by and is consistent with evidence that the appellant had the said “expertise” from late March 2020 when Ms Knox-Haly also recorded that “her business of advising people who were being bullied in the workplace was ‘beginning to take off’.”[40]
[40] Reasons, [45], [68].
Against this background, the Member concludes (at [71] of the reasons), “from the material which I have referred to” that the appellant “would have been aware from at least by July 2020, in her role and expertise as an advocate for clients who are exposed to psychological harm from bullying and harassment in the workplace, of the time limits for making a workers compensation claim”. However, the most important and dispositive finding is made at [72] of the reasons where he said it is the appellant:
“who bears the onus of proof on this quite specific excuse for the delay in making a claim for compensation and I am not satisfied that [she] has adequately addressed the records made by her medical providers of the expertise she claims to have had in advocating for workers who had suffered psychological harm in the workplace” (emphasis added).
In my opinion the finding that the appellant did not discharge her onus “on this quite specific excuse for the delay”[41] was reasonably open to the Member in all the circumstances and given the evidence referred to above. His lack of satisfaction that Dr Brittain’s and Ms Knox Haly’s records relating to the appellant’s “particular expertise”[42] were adequately addressed appears important in this regard. This was at least an adequate basis to support the ultimate findings. Clearly enough, he is saying that these records made between about 30 March 2020 and 21 July 2020 strongly point to, in concert with other evidence including the appellant’s education and work history, it being likely that the appellant was aware of the relevant timeframes – and that there is no other evidence addressing or traversing this.
[41] Reasons, [72].
[42] Reasons, [65], [70]–[73].
The Member also referred (at [69] of the reasons) to the “pinkcollarworkers” website which he noted was operating at the same time as Dr Brittain’s 21 July 2020 entry and the 20 July 2020 text message to Ms Knox-Haly. Again he expressed concern about there being no evidence from the appellant about this website and correctly found that she informed Ms Knox-Haly that this website was related to employment law.
Even if the Member did err at [65] of the reasons, it would make no difference to the result. It was not necessary for him to identify “compelling” evidence that the appellant knew the relevant timeframes given the onus borne by her. It was only necessary for him to find he did not have a sufficient level of actual persuasion or satisfaction to find that the failure to make a claim within six months was occasioned by ignorance (or mistake). However, as noted at [80] above, it is clear enough that he disposed of the case at least on this basis (see [72] of the reasons).
I also do not accept the appellant’s argument (at [2.8.13] of her submissions) that the Member failed to consider the appellant’s evidence of her work experience and studies being limited to employment and equal opportunity laws, and there being no basis to reject her evidence without a challenge to her credit under cross examination regarding “ignorance” or “mistake”. Firstly, the Member did consider the appellant’s evidence in this regard for the reasons already given above. Otherwise, this submission is inconsistent with the well-known flexible procedures in this Commission. In JB Metropolitan Distributors Pty Ltd v Kitanoski,[43] Roche DP stated at [121]:
“Subject to the relevant issues having been fully and fairly ventilated in the documentary evidence, and the parties having had a reasonable opportunity to make appropriate submissions on those issues, it is open to [a member] to form a view about the credit of a witness or a party even if that witness or party has not given oral evidence or been cross-examined (New South Wales Police Force v Winter [2011] NSWCA 330 from [81]).”
[43] [2016] NSWWCCPD 17.
The exchange of documents prior to the hearing in the appellant’s case was clearly sufficient to have notified her of a dispute about whether indeed her failure to make a claim within the required period was occasioned by ignorance. The Member did find (at [64] of the reasons) that he could not accept the appellant’s evidence on “the very limited and specific claim of ignorance”. In my opinion, this finding was open to him, and he did not err in doing so.
The assessment of credit is not limited to assessment of oral evidence under cross examination or demeanour. In CJZ Pty Ltd v Giant Dwarf Pty Ltd; CJZ Pty Ltd v Morrow,[44] Adamson JA (Ward P and Mitchelmore JA agreeing) stated:
“The assessment of credibility at first instance involves a number of factors, which include consistency of the statement with other statements and with the surrounding circumstances, motive and any corroboration which may be available: see generally Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 at 431 …; Watson v Foxman [1995] NSWCA 497; (1995) 49 NSW LR 315 at 318–319”.
[44] [2023] NSWCA 135, [59].
The Member dealt with the appeal in accordance with these principles.
I note that the appellant has not made any complaint about, or directed any submissions to, the Member’s reasons at [75]–[93] where he did not accept the appellant’s argument of there being “reasonable cause” in s 261(4) on the basis of advice given by Dr Brittain that she should not pursue a workers compensation claim but try and move on with her life. Similarly, the Member’s finding that the injury “happened in the period up until 11 December 2019”[45] is not the subject of an appeal ground or submission.
[45] Reasons, [97].
In the result, the Certificate of Determination is confirmed.

DECISION

The Certificate of Determination dated 13 January 2023 is confirmed.

Michael Perry
ACTING DEPUTY PRESIDENT

25 January 2024