Gomez v Padding Products Pty Ltd
[2005] NSWWCCPD 128
•8 November 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Gomez v Padding Products Pty Ltd [2005] NSW WCC PD 128
APPELLANT: Alicia Gomez
RESPONDENT: Padding Products Pty Ltd
INSURER:NRMA Workers Compensation Ltd
FILE NUMBER: WCC17939-03
DATE OF ARBITRATOR’S DECISION: 18 February 2005
DATE OF APPEAL DECISION: 8 November 2005
SUBJECT MATTER OF DECISION: Bias; reasonable apprehension of bias; and application for disqualification for bias.
PRESIDENTIAL MEMBER: President Justice Terry Sheahan
HEARING:On the papers
REPRESENTATION: Appellant: Lamond Howard and Associates
Respondent: Hunt and Hunt Lawyers
ORDERS MADE ON APPEAL:
1.The appeal is dismissed and the decision of the Arbitrator is confirmed.
2.The matter is referred to the Registrar to remit to the Arbitrator to deal with the outstanding issues.
3.No order as to the costs of the appeal.
BACKGROUND TO THE APPEAL
Ms Gomez, the Applicant, seeks leave to appeal the decision of the Arbitrator not to disqualify himself on the grounds of bias.
On 18 February 2005, during the course of a teleconference, an application was made by the legal representative for Ms Gomez that the Arbitrator disqualify himself because of statements he made during the teleconference which it was submitted were both biased against, and prejudicial to, Ms Gomez. The legal representatives of the Respondent, Padding Products Pty Ltd, opposed the application, and have also filed submissions in reply in the appeal proceedings.
Ms Gomez had brought a claim in the Workers Compensation Commission on 24 October 2003, in respect of injury to the back, neck and both arms as a result of the nature and conditions of employment from 1988 to 2000. She claimed lump sum compensation pursuant to sections 66 and 67, weekly compensation benefits from 29 August 2002 to date and continuing and $1,251.00 for medical expenses pursuant to section 60 of the Workers Compensation Act 1987 (‘the 1987 Act”).
On 1 December 2003, the Respondent filed a Reply, listing the following issues in dispute:
“1. Medical opinion held by the Respondent suggests that her earlier employment with it is no longer substantial contributing factor to the injury alleged.
2.The Applicant is now employed by Container Corporation and has conceded that this employment is aggravating her injury.
3. The condition from which the Applicant suffers is a disease of gradual process.”
A teleconference was conducted on 13 February 2004, after which a referral to an Approved Medical Specialist (‘AMS’) was made for the “Assessment of the Permanent Impairment Dispute”. In the referral the date/s of injury was/were nominated as “Deemed date 1/02/01 Nature and Conditions 1989 to 1/02/01”. A referral for “Assessment of General Medical Dispute” was also made with the date of injury nominated as “Deemed date 1/02/01”. In this referral a number of specific questions were asked of the AMS.
Dr Harrison (AMS) examined Ms Gomez and prepared a Medical Assessment Certificate of Permanent Impairment, which was issued to the parties on 6 August 2004.
Padding Products lodged an application to appeal the decision of an Approved Medical Specialist on 31 August 2004. The appeal did not proceed, as the Registrar was not satisfied that any of the grounds of appeal in section 327(3) of the 1987 Act had been made out.
The substantive matter proceeded to a further teleconference before a different Arbitrator on 18 February 2005, at which time the decision, now the subject of this appeal, was made.
THE DECISION UNDER REVIEW
The Statement of Reasons - Ex Tempore Orders, dated 14 March 2005 records the Arbitrator’s decision as follows:
“1 I decline to disqualify myself from this matter.”
The Arbitrator’s reasons were given orally at the teleconference, and are recorded in the transcript, copies of which have been provided to the parties.
ISSUES IN DISPUTE
The issues in dispute in the appeal, as raised by the Appellant, are:
· Did the statements made by the Arbitrator constitute bias and pre judgment of the matters for determination in the proceedings, such that he erred in not disqualifying himself?
· Did the Arbitrator fail to properly use his best endeavours to bring the parties to a settlement, pursuant to section 355 of the 1998 Act?
· Is the Arbitrator estopped from making findings relating to the date of injury, on the basis that the decision had already been made?
The Respondent to the appeal has raised the following issues:
· The appeal is not an appeal of a decision, pursuant to section 352(2)(a) and (b) and 352(8) of the 1998 Act, and leave should be refused.
· “The matters raised by the arbitrator during the conciliation discussions at the teleconference, as recorded, were not such as to form the basis of any disqualification application.”
· The application requesting disqualification was brought prematurely and should more appropriately be brought at the arbitration hearing.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) provides:
“If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission made by both parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The Respondent submits that leave should not be granted because the decision of the Arbitrator “not to disqualify himself at a teleconference in respect of matters raised in non recorded conciliation does not constitute a ‘decision’ within the meaning of section 352(8)”, and cites Tagg v International Flavours & Fragrances (Aust) P/L [2003] NSW WCC PD 5 in support of its submission.
The Respondent also cites the decision of Deputy President Fleming in Fletchers International Exports v Regan [2004] NSW WCC PD 7 in arguing that “…the Arbitrator’s decision refusing to disqualify himself does not have a real capacity to put the award of compensation in issue since no hearing of this claim has yet occurred and no decision regarding the substantive merits of the case has yet be [sic] determined by the Arbitrator.”
Whilst the section 352(8) definition of “decision” allows for an appeal against an interlocutory decision involving no “award” (see Grimson v Intergral Energy [2003] NSW WCC PD 29), the decision of the Deputy President not to grant leave to appeal in Tagg confirmed that decisions of a purely procedural matter, such as the decision to schedule a further teleconference, did not satisfy the threshold requirements. The decision must be such as to have the capacity to put the award of compensation at issue in the appeal.
As was observed by French J in the Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572 (8 November 2000), at paragraph 43:
“Interlocutory orders cover a spectrum from those concerned solely with the mechanics of case management and pre trial preparation to those which may, for one reason or another, have a significant impact on the scope and outcome of the proceedings”.
Kirby J in Johnson v Johnson [2000] HCA 48, at paragraph 38, observed:
“It is a ‘fundamental rule’ of natural justice and an ‘abiding value of our legal system’ that every adjudicator must be free from bias”.
The decision of an adjudicator not to disqualify him/herself on grounds of bias, after an application by a party, is not a mere procedural decision of case management or pre trial preparation, but it is a decision, albeit interlocutory, that goes to the heart of due process, making a fundamental impact on both the scope and the outcome of the proceedings.
The Respondent’s submission that, because the application, and the Arbitrator’s decision, related to matters raised in the unrecorded conciliation part of a teleconference, the Arbitrator’s decision not to disqualify himself did not constitute a “decision” within the meaning of section 352(8), is unsustainable. I am, therefore, satisfied that the relevant decision, as recorded in the “Statement of Reasons - Ex tempore Orders” dated 14 October 2005 is a “decision” within the meaning of section 352(8) of the 1998 Act.
The Respondent submits that, if the decision not to disqualify is found to be a “decision” within the meaning of section 352(8), then the Arbitrator’s refusal to disqualify himself is not a decision which meets the threshold requirements of section 352(2)(a) and (b): that is, the amount of compensation at issue on the appeal is both at least $5,000 and at least 20% of the amount awarded in the decision appealed against.
Section 355(2) of the 1998 Act confers the unique and specific role and responsibility on the Arbitrator to, firstly, conciliate the dispute and attempt to bring the parties to a settlement, and, then, secondly, if the dispute cannot be settled, to make an award or determination. No objection can be taken to the Arbitrator acting first as conciliator and then as arbitrator.
I am of the opinion that statements or behaviour grounding claims of perceived or apprehended bias, such as to amount to a pre judgment of the matters in dispute, would cause a substantial injustice to one of the parties, and have a real capacity to put “the amount of compensation at issue on the appeal”.
Given the unique role of the Commission arbitrator, acting both as conciliator and then as arbitrator, it is crucial, in the interests of justice and public confidence, that the arbitrator act, and be seen to act, fairly, impartially, independently, and free from bias throughout the entire dispute process.
The amount of the claimed compensation in the present case exceeds $5000.00 and the 20% threshold does not apply when there is no amount of compensation awarded in the decisions appealed against. See section 352(2) of the 1998 Act, and Mawson v Fletchers International Exports Pty Ltd [2002] NSW WCC PD 22.
I am satisfied that the appeal against the decision of the Arbitrator to refuse to disqualify himself, when asked to do so, meets the threshold tests in section 352(2) and (8), and I grant leave to appeal.
DISCUSSION AND FINDINGS
Did statements made by the Arbitrator constitute bias and pre judgment of the matters for determination in the proceedings, such that he erred in not disqualifying himself?
Ms Gomez’ solicitors submit that during the unrecorded part of the teleconference the Arbitrator made:
·prejudicial remarks about Ms Gomez’ case, such that the Arbitrator should disqualify himself;
·remarks that demonstrated that the Arbitrator had “already formed a view concerning the issues that might need to be decided in the case”;
·“scathing remarks about the quality of the AMS report inter alia ‘the report is a load of dribble[sic]’”; and
·“critical remarks about the former Arbitrator and her handling of the decisions made by her and made reference to the way he might find in relation to then [sic] matter”.
The solicitor for Padding Products submits that:
· “[t]he matters raised by the Arbitrator during the conciliation discussions at the teleconference, as recorded were not such as to form the basis of any disqualification application”;
· “the Arbitrator within the confines of a conciliation, is perfectly entitled to inquire of the Appellant as to the nature of the case, the provisions upon which it seeks to rely, the conflicts contained within the evidence and the effects of the MAC” ;
· the Commission model “would be undermined if a party was permitted to seek disqualification of an Arbitrator each time an Arbitrator expressed his or her views or concerns about the prosecution of a case and the possible outcomes of the case”; and
· the application was premature and should, if necessary, be made at the conciliation/arbitration phase.
Proceedings in the Commission are to be “conducted with as little formality and technicality as the proper consideration of the matter permits” (section 354(1) of the 1998 Act), and “the Commission is to act according to equity, good conscience and the substantial merits of the case…”(section 354(3) of the 1998 Act). Fundamental to the rules of procedural fairness is the right to a fair hearing by an independent and impartial arbitrator and, as stated in Inghams Enterprises Pty Ltd v Zarb [2003] NSW WCC PD 15 at paragraph 25, “a party is entitled to be heard in relation to the case against it, before the decision-maker exercises the power to make the decisions”. See also Twist v Council of Randwick (1976) 136 CLR 106, at 110.
The test for determining whether an adjudicator should disqualify him/herself for reasons of bias, both actual and apprehended, is “ whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide” – per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnson v Johnson [2000] HCA 48 at paragraph 11.
An arbitrator will not breach the bias rule by expressing an opinion or a predisposition towards or against an argument, if he/she demonstrates that his/her mind is not closed and his/her opinion or inclination is open to change after he/she has heard the evidence and submissions from the parties (Minister for Immigration v Jia (2001) 174 ALR 655). If, however, the fair-minded lay observer infers from the behaviour of the arbitrator, (in his/her testing of the evidence and his/her discussion with the legal representatives), that this behaviour is overbearing, intimidating and the arbitrator has formed a final and unchangeable view, this may constitute a reasonable apprehension of bias, sufficient to disqualify the arbitrator (Re Refugee Tribunal; Ex parte H [2001] HCA 28).
Judges and tribunal members regularly and actively engage with the legal reprentatives in identifying the issues in dispute and testing the evidence. As observed by Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnson v Johnson [2000] HCA 48 at paragraph 13:
“Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment… counsel are usually assisted by hearing those opinions, and being given the opportunity to deal with them.”
The application made by Ms Gomez’ solicitor to the Arbitrator, as recorded on page 1 of the transcript, is as follows:
“The application is that the Arbitrator be disqualified from this matter on the basis that the Arbitrator continuing to be the Arbitrator would create prejudice towards the applicant on the basis of comments that he has made during the course of this teleconference”
The solicitors for Ms Gomez submit that the statements and comments made by the Arbitrator, forming the basis of the disqualification application, were made during the unrecorded part of the teleconference. It is the usual practice of the Commission that teleconferences are not recorded unless the parties request that the proceedings be so recorded, and/or if the Arbitrator makes a determination, or the parties agree to a settlement of the matter and a recording is made of the orders and reasons. The conference was recorded in this case once the solicitor for Ms Gomez made a formal application that the Arbitrator disqualify himself.
After the Arbitrator requested “[y] ou’d better specify those comments,” Ms Gomez’ solicitor stated:
“These comments relate to matters concerning the date of injury; the fact that the date of injury has already been determined by a previous Arbitrator; that there are matters that the Arbitrator is now raising that haven’t been raised by the respondent that he believes should be determined, which in the opinion of the applicant and the applicant’s legal representation [sic] have already been decided… [T]he Arbitrator is now raising issues which indicate that he is of the view that there are matters that need to be dealt with that have already been dealt with.”
Padding Products’ solicitor submitted in reply that:
“The respondent has no objection to the Arbitrator continuing to hear the matter. It’s clear from comments made by [the Arbitrator] that he has some concerns regarding the findings made by the AMS and his capacity to make those findings. The respondent believes they are a matter for submissions at an arbitrated hearing rather than at the peak of time at conference…”
In his ex tempore decision, as recorded, the Arbitrator noted that the previous arbitrator had identified the agreed date of injury prior to the referral to the AMS. He observed that with the referral to the AMS there was also a ‘referral for assessment of a general medical dispute’, asking the AMS a number of questions, including a question seeking comment on disability attributable to “subsequent employment”. The Arbitrator referred to these questions contained in the general medical dispute referral, and their answers as detailed in the AMS report and he expressed his opinion that they:
“tend to negate the finding of the deemed date of injury
…
the question about subsequent employment throws doubt on the whole finding in that if there is subsequent employment that’s aggravating, then obviously it’s [sic] the relevant employment for fixing the deemed date of injury…. [a]nd I have wondered about that.…
I have not expressed any final decision.”
The Arbitrator referred the parties to the AMS report in which the doctor provided an opinion in answer to a question on the AMS referral, apportioning part of the assessments pursuant to section 66 to Ms Gomez’ employment with her current employer (not a party to the proceedings). The Arbitrator noted that the Respondent’s Reply listed issues between the parties including incapacity, subsequent injury, and disease.
The Arbitrator in declining to disqualify himself stated:
“In raising these issues I’ve not been attempting to do any more than raise them for the attention of the parties to hear submissions on, and I certainly haven’t made any decisions about it and won’t until I’ve had a good look at the case at the arbitration level, during which time I’ll be assisted by submissions and I’ll be assisted by seeing the parties and any further documentation that they wish to put on.”
The submissions filed on appeal by Ms Gomez briefly refer to some of the remarks and comments allegedly made by the Arbitrator expressing an adverse opinion on the quality and content of the AMS report and the conduct of the matter when it was before a different arbitrator. Ms Gomez and her legal representatives were aware that the earlier part of the teleconference was not recorded, and have failed to file any evidence in support of the submission that the asserted remarks and comment were, in fact, made.
The submissions on appeal lodged by the solicitor for Padding Products refer only to the comments made by the Arbitrator during the conference as recorded. No submissions have been made by the Respondent in relation to the unrecorded part of the teleconference.
In the present case it was not unreasonable for the Arbitrator to raise issues which were of concern to him, in the light of the possibility he might ultimately be required to determine the matter. The evidence from the AMS apportioning some of Ms Gomez’ permanent impairment to her employment with her current employer, who is not a party, would need to be addressed by both parties, should the matter proceed to arbitration hearing. The Arbitrator would not breach the bias rule by highlighting conflicting evidence, and possible issues upon which he would require submissions from the parties in due course.
There is nothing in the statements made by the Arbitrator on transcript that would prevent him from continuing to hear the case. In dealing with the application for disqualification he gave Ms Gomez’ solicitor an opportunity to specify the comments made by the Arbitrator, with which issue was taken. In response to that opportunity, the solicitor appears to have made only some general, ‘broad-brush’ submissions, but failed to make any specific submissions.
The Arbitrator expressly stated, in his reasons for not disqualifying himself, that:
(i)he had not made a decision,
(ii)he had merely raised issues about which he would seek submissions from the parties, and
(iii)he would not make a decision until after he had heard all the evidence and submissions from both parties.
The general nature of the assertions in the Appellant’s submissions on appeal, together with the absence of evidence in support, are insufficient to disclose grounds that would satisfy the test of apprehended bias. I am, therefore, not satisfied that the Appellant has established that the Arbitrator erred in law by failing to disqualify himself on the grounds of bias, and this ground of appeal fails.
Did the Arbitrator fail to properly use his best endeavours to bring the parties to a settlement, pursuant to section 355 of the 1998 Act?
It is submitted on behalf of Ms Gomez that:
·“[t]he Arbitrator was non-responsive to submissions made by the applicants [sic] Solicitor to focus on the resolution of matters between the applicant and the respondent by arbitrating the matter”,
·he did not attempt to conciliate the matter as required by section 355 of the 1998 Act, and
·he only wanted to “adjudicate his already apparent position.”
Pursuant to section 355 of the 1998 Act, the Arbitrator is under a statutory duty to use his/her best endeavours to assist the parties to come to a settlement and resolve their dispute. The Commission processes are designed to facilitate this through the teleconference, and the conciliation conference, with the matter proceeding to arbitration hearing only when the parties are unable to reach agreement.
Ms Gomez’ matter has proceeded to a teleconference and, in accordance with the Commission’s procedures, it will proceed to a conciliation conference and then to an arbitration hearing, only if the parties are unable to resolve their dispute. Given that, prior to the application for disqualification, the teleconference was not recorded, and that the submissions on behalf of Mrs Gomez are general assertions that fail to provide any specific details of the Arbitrator’s conduct in relation to discharging his statutory duty to attempt to bring the parties to settlement, I am not satisfied that the Appellant has proved this ground of appeal, and it therefore fails.
Is the Arbitrator estopped from making findings relating to the date of injury, on the basis that the decision had already been made?
The role of the Presidential member on appeal is one of review. The power of the Presidential Member to revoke the Arbitrator’s decision pursuant to section 352(7) of the 1998 Act and to substitute a new decision in its place, is exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error. See Allesch v Maunz [2000] 203 CLR 172.
Ms Gomez submits that the Arbitrator stated that he “would be determining the nature of injury and it’s [sic] relationship to the applicant’s employment history”. Ms Gomez submits that the Arbitrator is estopped from so doing, and “lacks jurisdiction to embark upon what could only be deemed an appeal of a decision of an Arbitrator.”
The transcript of the teleconference as recorded does not disclose that the Arbitrator made any findings relating to the date of injury. He did, however, during the recorded part of the teleconference, identify a number of issues upon which he would invite submissions from the parties should the matter proceed to an arbitration hearing. These issues related to injury, dates of injury, and the evidence contained in the AMS report. The Arbitrator has not made a decision relating to injury, and, therefore, there is no decision for me to review. This ground of appeal is not made out, and I am satisfied that the evidence does not disclose any error by the Arbitrator.
DECISION
The appeal is dismissed and the decision of the Arbitrator is confirmed.
The matter is referred to the Registrar to remit to the Arbitrator to deal with the outstanding issues.
COSTS
I make no order as to the costs of the appeal.
Justice Terry Sheahan
President
8 November 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUSTICE TERRY SHEAHAN, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION
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