Haddad v GJ Formwork Pty Ltd (in Liq)

[2007] NSWWCCPD 156

WORKERS COMPENSATION COMMISSION

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

CITATION:Haddad v GJ Formwork Pty Ltd (in Liq) [2007] NSWWCCPD 156

APPELLANT:  Mousa Said Haddad

FIRST RESPONDENT:  GJ Formwork Pty Ltd (in Liq.)

SECOND RESPONDENT:  Raymond Boumoussa

THIRD RESPONDENT:  WorkCover NSW

RESPONDENT INSURER:  QBE Workers Compensation (NSW) Ltd

FILE NUMBER:  WCC7242-06

DATE OF ARBITRATOR’S DECISION:          16 August 2006 (amended 29 September 2006)

DATE OF APPEAL DECISION:  16 July 2007

SUBJECT MATTER OF DECISION: Definition of ‘worker’; section 4 Workplace Injury Management and Workers Compensation Act 1998; weight of evidence, and credit.

PRESIDENTIAL MEMBER:  Acting Deputy President Rod Weaver

HEARING:On the papers

REPRESENTATIONS:  Appellant: Stacks

First Respondent: QBE In-House Legal Dept

Second Respondent: No appearance

Third Respondent: WorkCover NSW

ORDERS MADE ON APPEAL:  The decision of the Arbitrator 16 August 2006 amended 29 September 2006, is confirmed.

No order as to costs of the Appeal.

BACKGROUND TO THE APPEAL

1. On 12 September 2006 Mousa Said Haddad (‘the Appellant Worker/ Mr Haddad’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 16 August 2006 and amended 29 September 2006.

2. The respondents to the appeal are GJ Formwork Pty Ltd (In Liquidation) (‘the company/GJ Formwork’), Raymond Boumoussa (‘Mr Boumoussa’) and WorkCover NSW.

3. Mr Haddad alleges that he suffered a penetrating injury to his right eye in or about November 2002 whilst removing nails from planks of wood with a claw hammer in the course of his employment with either, GJ Formwork, or alternatively, Mr Boumoussa. Mr Haddad alleges in his claim form that at the time of the accident he was working on a building site at “Canlly Vall” (sic). In his statement of 12 July 2005 he says the work site was at Baulkham Hills. There was conflicting evidence before the Arbitrator as to the location of the site, a matter which is referred to later.  Mr Haddad remained at the site until “knock off time” and then returned to the company's depot in Belmore before, apparently, driving himself to Canterbury Hospital.  Mr Haddad was then transferred to Royal Prince Alfred Hospital (‘RPA’), where he underwent surgery to his eye.  The medical evidence from RPA shows that, on or about 1 November 2002, Mr Haddad suffered a serious eye injury that has left him with a significant impairment. 

4. Mr Haddad alleges that at the time he suffered the injury to his eye, he had only been working on the site for two or three days.  A few weeks after he suffered his injury, Mr Haddad claims he was “paid cash for the work” which he thinks was “about $350”.  Mr Haddad does not state how he received that cash payment, but the evidence of his friend, Elie Keirouz, was that a week or two after Mr Haddad suffered his injury he was given “about $300 in cash” by, Mr Boumoussa, to give to Mr Haddad. 

5. Mr Haddad did not make a claim in relation to his injury until June 2004, when his solicitors notified Mr Boumoussa and WorkCover, the latter in the belief that Mr Haddad was employed by a company known as Lymorb Pty Ltd.  By letter dated 6 December 2004, WorkCover notified Mr Haddad’s solicitors that QBE Workers Compensation (NSW) Ltd (‘QBE’) was the insurer on risk at the relevant time for the first respondent company.

6.In his statement dated 30 October 2004, Mr Boumoussa says that he was currently the proprietor of GJ Formwork which he believed was “founded” in July 2001.  Mr Boumoussa stated that in or about 1987 he founded a formwork company named Lymorb Pty Ltd (‘Lymorb’) and that that company ceased to operate or went into liquidation in about the year 2000.  It was Lymorb against whom Mr Haddad initially claimed.  Mr Boumoussa states that it was his usual practice to see any new workers himself and have them fill in an application form which he would retain. He says that he would then send the new worker’s details on to his accountant. Mr Boumoussa stated that he had never met a person by the name of Mousa Said Haddad, had never “dealt with a building site at Canley Vale” and did not know anything about Mr Haddad’s alleged accident. Mr Boumoussa’s position is supported by his employee, Said El Souss.  Mr El Souss says that he has worked with Mr Boumoussa since 1999 but had never met Mr Haddad and did not know his name. Mr El Souss says that in November 2002 he was the office organizer of GJ Formwork and it was his duty when someone came to work for the company to get that employee to fill in “all the relevant employment forms”.  Mr El Souss claims that it is not possible for Mr Haddad to have worked for GJ Formwork without him knowing and confirmed that GJ Formwork never worked on a building site at Canley Vale.

7.By letter dated 17 May 2005, QBE advised Mr Haddad’s solicitors of a discrepancy between the claim form, in which he put the date of commencement of his employment with Lymorb at about 7 or 8 November 2002 and the RPA records which showed Mr Haddad had been admitted to that hospital with his injury on 1 November 2002.  QBE asserted that Mr Haddad’s injury “is post date to his employment”(sic).  Clearly, the letter should have read “pre-dates his employment”.  QBE then asserted that there was a potential fraud and indicated that an investigation would be undertaken.  Despite further correspondence from Mr Haddad’s solicitors, by letter of 14 July 2005 QBE maintained its position.

8.On 10 May 2006, Mr Haddad lodged an Application to Resolve a Dispute in the Commission, citing the failure to resolve the claim through correspondence between his solicitor, QBE and WorkCover.  A teleconference was conducted on 19 July 2006 but no agreement was reached between the parties.  The matter proceeded to arbitration on 26 July 2006 with the arbitrator publishing his decision on 31 July 2006 and a Certificate of Determination issued on 16 August 2006.  An Amended Certificate of Determination was issued on 29 September 2006.  In the original Certificate of Determination, paragraph 1 of the decision read:

“1.Award in favour of the Respondents in respect of the Applicant's claim for lump-sum compensation under sections 66 and 67 and medical expenses under section 60 of the Workers Compensation Act 1987.”

In the Amended Certificate of Determination, paragraph 1 of the decision read:

“1.Award in favour of the Respondents.”

9.On 12 September 2006, the Appellant Worker lodged in the Commission an Application to Appeal Against Decision of Arbitrator.  No issue is raised in this appeal in relation to the amendment. The full decision in the Amended Certificate of Determination reads:

“The determination of the Commission in this matter is as follows:

1.  Award in favour of the Respondents. 

2.  No order as to costs.”

10.The Appellant Worker’s submissions attached to the Application set out “grounds of appeal” in the following form:

The Appellant asserts that the Arbitrator erred in that:

(i)        he misdirected himself as to the existence of a contract of employment between Mr Haddad and Mr Boumoussa;

(ii)       any “imperfection” in the evidence as to the “formation” of a contract of employment between the applicant and Mr Boumoussa was cured by:

(a)the uncontroverted fact that Mr Haddad was working at a building site controlled by Mr Boumoussa; and

(b)the uncontroverted fact that the applicant was paid by Mr Boumoussa what could only be construed as being wages and/or payment for personal exertion. The fact that the applicant was so paid is established by the uncontroverted evidence of Mr E.Keirouz;

(iii)      he misapplied the law in that the question before him was whether there did exist a contract of employment between the applicant and Mr Boumoussa which upon the facts found, constituted a contract, and misdirected himself as to what he thought were “imperfections” as to the formation of a contract, and

(iv)      he failed to give proper weight to the failure of Mr Boumoussa to attend and defend the allegations made against him by the applicant, which could only be construed upon the basis that whatever Mr Boumoussa could have said would certainly not have advanced his position, specifically the allegation that Mr Boumoussa paid the applicant wages for his personal exertion and these wages were passed on to Mr Haddad by Mr Keirouz.

ON THE PAPERS REVIEW

11.None of the parties has sought leave to adduce fresh evidence.  The Appellant Worker asserts that the appeal should not be determined ‘on the papers’ and a hearing is necessary. The Respondents are silent on the issue of oral submissions. The Appellant Worker makes the following submission in that regard:

“4.In respect to whether this appeal can be decided solely on the basis of the written application the applicant asserts that the appeal should not be determined on the papers and that a hearing is necessary.  The applicant’s submission in this respect are (sic) as follows:

i)this matter involves consideration of very complex facts as to whether or not a contract of employment existed between the applicant and the respondent (sic).  It requires careful consideration of the documentation and evidence presented in the Application and the Reply.  Such cannot be done adequately by written submissions alone and accordingly the matter ought to be dealt with by way of oral argument as well.

ii)Further, in light of the complex factual issues in this matter and the wealth of documentation as evidenced by the Application and the Reply it is submitted that the applicant would be denied natural justice if the option to present oral submissions and argument was not given.”

12.Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 Act (‘the 1998 Act’) provides:

“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”

13.Section 354(6) does not provide a party with an “option” to present oral submissions. The facts as they fall to be determined on the evidence are clear. The only issue determined by the Arbitrator was that of “worker”. That issue and the evidence in relation to it are not complex. There is nothing in the Appellant worker’s submissions that points to a failure on the part of the Arbitrator to allow further evidence, either oral or otherwise. Certainly, there is no ground of appeal suggesting that the Appellant Worker was not given full opportunity to present his case. At arbitration, the Appellant Worker was represented by Mr Benson of Counsel who competently argued the Appellant Worker’s case. If there was an aspect of his argument that was overlooked or not addressed by the Arbitrator in his findings, that aspect should have been specified in the Appellant Worker’s submissions on appeal. On the evidence that was before the Arbitrator, it is difficult to see what further argument could have been put for the Appellant Worker in any event. Having regard to Practice Directions 1 and 6, the documents that are before me and the respective submissions of the parties at arbitration and on appeal, 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 TO APPEAL

14.The amount of compensation at issue on appeal in this matter exceeds $5,000.00. As no compensation was awarded at arbitration, the 20% threshold pursuant to section 352(2) of the 1998 Act does not apply. (Mawson v Fletchers International Exports Pty Limited [2002] NSWWCCPD 5)

15.Section 352(4) of the 1998 Act provides that an appeal can only be made within 28 days of the decision appealed against.  The Certificate of Determination was issued on 16 August 2006 and amended to 29 September 2006. An appeal was lodged by fax to the Commission on 12 September 2006. Therefore the appeal was lodged in compliance with the relevant section. I am satisfied that it is appropriate to grant leave pursuant to section 352 of the 1998 Act and I do so.

SUBMISSIONS AND EVIDENCE

16.The grounds of appeal are set out in paragraph 10 above.  The evidence before the Arbitrator comprised the following statements:

Mousa Said Haddad  12 July 2005

John Keirouz  18 November 2004

George Keirouz  17 November 2004

Elie Keirouz  23 November 2004

Thomas Keirouz  20 November2004

George Zaatini  30 October 2004

Said El Souss  9 November 2004

George Boumoussa  23 October 2004

Raymond Boumoussa   30 October 2004

17.Mr Haddad is a long-term family friend of the four witnesses Messrs Keirouz. The Respondents rely on the statements of Raymond Boumoussa, the Second Respondent and, at the relevant time, the principal of the First Respondent, Mr Boumoussa’s son George, who worked with his father in the company GJ Formwork, and, former employees of the company and now employees of Mr Boumoussa’s present company, Mr El Souss and Mr Zaatini.  

18.The principal issue before the Arbitrator and ultimately the basis of his decision, was whether Mr Haddad was, at the time of his injury, employed by one or more of the respondents and therefore a ‘worker’ as defined in section 4 of the 1998 Act. The evidence on the issue of ‘worker’ is strongly conflicting, not only between the opposing parties but also between Mr Haddad and each of the four Mr Keirouz witnesses.

19.On his claim form Mr Haddad alleges that he was injured at a building site at “Canlly Vall” which was logically interpreted at arbitration as Canley Vale.  Elie Keirouz claims that he was working at the building site when Mr Haddad was injured and that the building site was at Castle Hill.  John Keirouz also claims that he was working at the building site at the time Mr Haddad was injured but that the building site was “heading out towards Liverpool along the highway”, a description which would suggest Canley Vale rather than Castle Hill.  Neither Thomas nor George Keirouz claim to have been present when the injury occurred although Thomas volunteers that the accident occurred at a building site at Castle Hill.  In his statement made more than six months after the lodgment of his claim form, Mr Haddad says that the worksite was at Baulkham Hills.

20.Mr Haddad alleges that he was injured at approximately 11am.  In his claim form he asserts that the accident occurred on 8 or 9 November 2002.  The RPA records show that Mr Haddad presented with his eye injury on 1 November 2002.  Mr Haddad asserts that, following the accident, he remained at the building site until “knock-off time” and was then driven back to the First Respondent’s depot in Belmore by Elie Keirouz.  Elie Keirouz, however, states that, after the accident, Mr Haddad “just waited around to go home and did not work any more the rest of the day.  I don’t remember how he went home”.

21.There is also conflict between the evidence of the three brothers, John, Elie and Thomas Keirouz surrounding the time of the alleged accident and who was actually on-site at the time the accident is alleged to have occurred.

22.John Keirouz, who is profoundly deaf, claims that he actually witnessed the nail strike Mr Haddad in the eye.  He says:

“[on the building site] there was only me, Mousa [Mr Haddad], my brother Thomas and the man second in charge and another man third in charge on site…My brother was working in a different part of the building and did not see the accident happening.  I was the only person that saw the accident as far as I am aware”. 

He says that after the accident, “Mousa then went to the lunch room and I believe that it where he was given first aid. I did not see Mousa until the 12 o’clock lunch break. I saw him in the lunch room and his eye was closed”

23.Thomas Keirouz claims to have worked for GJ Formwork from August to October 2002 but says, contrary to John’s statement, that he was not working for Mr Boumoussa when Mr Haddad allegedly commenced work. He states that when the accident happened he was at home and that it was his brother, Elie, who told him that Mr Haddad hurt his eye working on a site “I think it (sic) Castle Hill”.

24.Elie Kierouz claims that he was at the site at the time of the accident.  He says Mr Haddad “called me over some time after lunch. He called out Elie at the top of his voice. He was in the basement floor to the best of my memory and I was just in the next room, not far”. (emphasis added)

25.Elie Kierouz’s evidence contradicts that of John Kierouz, both as to the timing of the accident and who exactly was present on-site.  John’s assertion that Thomas and not Elie was on-site is contrary to the evidence of Thomas.  Neither John nor Elie refer to the other being present on site at the time of the accident yet both claim to have been there as, or immediately after, the accident happened.  In terms of the extent of the injury, Elie refers to seeing “redness in (Mr Haddad’s) eye, I didn't see the nail mark”. John states “I got a shock, blood was coming out of Mousa’s eye”.

26.There is no documentary evidence of a contract between the Appellant Worker and any of the Respondents.  Mr Haddad provides no direct evidence in his statement of the circumstances of his employment.  He asserts that he was working for “Lymorb Pty Ltd (Raymond Boumoussa)”, that he had only been working for a couple of days and that he was paid cash in hand.  However, the alleged payment of cash in hand was subsequent to the accident and there is still no evidence as to who engaged Mr Haddad and when.

27.Evidence of employment practices of GJ Formwork is provided by the Keirouz brothers.

John Keirouz states that when he started working for GJ Formwork he had to “fill in a form and my brother Thomas helped do that”.  Thomas states that he worked for GJ Formwork for three months from August to October 2002 but “I did not have to fill a job application form or nothing.  He didn't pay me till five months after the first day I worked.  He paid me by cheque from GJ Formwork Pty Ltd.”  Thomas gave evidence that he had met Mr Boumoussa in about 2001 and that “we were going to be partners in the formwork but things did not work out”.  Elie Keirouz provides no evidence of how he came to be employed by GJ Formwork.  George Keirouz claims that he did not have to fill in paperwork when he started working for GJ Formwork but states that he was not sure if he signed anything later. But no evidence was provided as to the circumstances by which Mr Haddad came to be at the site, in the employ of one or other of the respondents.

28.Raymond Boumoussa gave evidence that before a worker is employed by one of his companies they come to his office and fill in a job application which Mr Boumoussa would then keep in his office.  He states that he never employed Mr Haddad personally or through either of his companies, Lymorb Pty Ltd or GJ Formwork.  George Boumoussa, in his statement dated 23 October 2004 asserts that he has worked part-time for GJ Formwork from the date of its incorporation and is now its general manager. He says that Mr Haddad has never worked for GJ Formwork and was not employed by the company in November 2002.

29.Said El Souss states that as at November 2002 he was working for GJ Formwork as an office organiser. He says that if someone had come to work for the company at that time, it was his duty to get that person to fill out relevant employment forms.  He states that he has “no knowledge at all whatsoever of a Mousa Said Haddad” applying for employment at that time and that the site supervisor would have provided him notice if Mr Haddad had started working with the company because it would be necessary for him to arrange all the paperwork. George Zaatini says that he worked for GJ Formwork but cannot recall what dates, has never worked on a building site at Canley Vale and has never met Mr Haddad.  Both Said El Souss and George Zaatini say that they never heard about the alleged incident.

DISCUSSION AND FINDINGS

30.A Presidential member on appeal has a specific and limited role in the review of a decision of an Arbitrator.  The review is not a hearing.  A Presidential member does not deal with a matter de novo and does not arrive at a fresh decision based on all the evidence available at a later time (Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (1976) 135 CLR 616). The powers of the Presidential member to revoke the decision pursuant to s.352 7) of the 1998 Act and to substitute a new decision in its place, are exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, or factual discretionary error (Allesch v Maunz (2000) 203 CLR 172). Alternatively, the Presidential member may remit the matter to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision made.

“Uncontroverted Facts”

31.In his submissions, the Appellant Worker refers to certain aspects of the evidence as being “uncontroverted facts”.  An assertion by a witness or evidence in any form is not an uncontroverted fact simply by virtue of it having been made or provided. The assertions that Mr Haddad was working at a building site controlled by Mr Boumoussa and that he was paid a wage by Mr Boumoussa being the $300 or $350 passed on by Elie Keirouz do not constitute “uncontroverted facts”.  They are assertions made by witnesses and traversed in the evidence of Mr Boumoussa, his son George and El Soussa.  It was always open to the Arbitrator to not accept the evidence provided by John and Elie Keirouz, particularly given the contradictory nature of that evidence as has been noted above.

Misdirection as to Existence of Contract

32.The Arbitrator correctly noted at paragraph 20 of his determination that in establishing a contract of employment “the onus is on the Applicant”.  The Arbitrator undertook a careful and thorough examination of the evidence before him. He noted at paragraph 11 of his determination that:

“The problem for the Applicant’s case is that there is nothing in his statement as to the circumstances of his commencing employment.  There is nothing about being offered the job, who employed him, what was said at the time, or how he got to the work sites.  We meet the applicant at a job in a suburb described in his claim form as ‘Canlly Vall’, but in his statement as ‘Baulkham Hills’.  Mr Elie Keirouz names the location of the alleged incident as Castle Hill.” 

The arbitrator also notes the conflict arising from Haddad’s evidence that Elie Keirouz drove him back to Belmore when in fact Elie Keirouz states that he doesn't remember how Haddad went home.

33.In relation to the evidence relied upon by the respondents, the Arbitrator takes into account the absence of any paperwork and observes that “it is not satisfactory for an injured worker to be deprived of benefits merely because of a lack of record-keeping by an employer”.  Further, he notes the conflict between the statements of Mr Boumoussa and El Souss and considers that workers may have been recruited by one or more of the Respondent’s current workers and the paperwork dealt with later.  However, as the Arbitrator correctly notes, the Appellant Worker failed to provide any evidence directly in relation to that aspect of his case.

34.Ultimately, the Arbitrator found at paragraph 19 of his determination:

“The applicant submits that it should be accepted that he was at a work site, and if at such a site, it can then be inferred that he was a worker for one of the respondents.  It was submitted that it is common for matters before the Commission to lack some details.  I agree with the submissions that there are sometimes gaps in the evidence, but the gap here is considerable on the worker issue.  The lack of evidence of the formation of a contract does not allow any inference to be drawn.  I am unable to find that the applicant was at a work site of the respondents in any case, because I did not accept the statements of John and Elie Keirouz on this point due to the discrepancies discussed above.”

The discrepancies or contradictions in the evidence provided by the Keirouz witnesses and Haddad bear directly on the credibility of the whole of the evidence going to the existence of a contract of employment.

35.It is clear that the Arbitrator has considered the evidence in relation to the existence of a contract of employment and found, on the balance of probabilities, that no such contract existed. There is nothing that would indicate that he has in any way misdirected himself in relation to the existence of that contract and his finding demonstrates no legal, factual or discretionary error.

Misapplication of the law

36.There is nothing in the Arbitrator’s determination which could support the assertion that he “misapplied the law” in relation to the existence of a contract of employment.  The proof of the existence of a contract is a matter for evidence.  There is no suggestion that the Arbitrator misdirected himself as to the definition of “worker”.  Furthermore, the reference to “imperfections” seems based on a phrase used in submissions by counsel for the Appellant Worker rather than on anything stated by the Arbitrator, either at hearing or in his determination.  The fact found by the Arbitrator most relevant to his decision was that the Appellant Worker was not at the work site operated by any of the Respondents because he could not accept the conflicting statements of John and Elie Keirouz.  Based on that finding, there is clearly no misapplication of the law.

Failure to give proper weight

37.As I understand this ground, the Appellant Worker seeks to have the arbitrator’s decision revoked because of a failure to draw an adverse inference from Mr Boumoussa’s failure to attend the arbitration.

38.At the outset of the arbitration hearing, there was discussion in relation to the prospect of cross-examination of Mr Haddad.  Mr Batten for QBE asked that it be noted that, as the Appellant Worker did not intend to seek leave to put on oral evidence, no application would be made in relation to cross-examination.  Mr Trainor for WorkCover then raised the fact that the Second Respondent, Mr Boumoussa was not present at the hearing and that questions of procedural fairness might arise if there was ultimately a finding against him.  At no stage during that exchange did Mr Benson for the Appellant Worker indicate that he intended to seek leave to cross-examine Mr Boumoussa nor did he seek an adjournment to pursue that purpose.  In those circumstances it is difficult to avoid the inference that the applicant's legal advisers had not intended to seek leave to cross-examine Mr Boumoussa even if he had attended the arbitration.  Mr Boumoussa was not obliged to attend the arbitration to “defend the allegations against him”.  He made a statement and relied upon that statement and the other statements filed in reply.  It was for the applicant worker to establish a contract of employment and not for Mr Boumoussa to disprove one. 

39.The Arbitrator did not directly consider what might be termed a Jones v Dunkel (1959) 101 CLR 298 inference. He was not invited to do so by the Appellant Worker’s counsel. However, he quite properly considered “the conflict between the statements of Mr Said El Souss and Mr Raymond Boumoussa on the one hand, and the Applicant, John Keirouz and Elie Keirouz on the other”, the evidence of cash wages with little record-keeping, and the claim by Elie Keirouz that Mr Boumoussa gave him $300 to take to Mr Haddad. The Arbitrator then weighed up the evidence and found, in an entirely appropriate exercise of his discretion, that the Appellant Worker had failed to establish a contract of employment. It cannot be said that the Arbitrator at any time failed to consider appropriately facts before him or failed to give proper weight to the evidence as it was presented.

CONCLUSION

40.In Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34, Bryson JA said:

“38 A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member.”

Whilst the powers of a Presidential member on review may be wider than the test stated in House v. R (1936) 55 CLR 499, I see no basis on which I should exercise any such power in this matter, given the nature of the evidence and the Arbitrator’s consideration of it.

41.I find that the Arbitrator has made a determination which was entirely open to him on the evidence.  I find that he has not misdirected himself in relation to the existence of a contract nor has he misapplied the law in relation to the Appellant Worker’s employment nor has he failed to give proper weight to the failure of the Second Respondent to attend the arbitration hearing.  Accordingly, the decision of the arbitrator is confirmed.

DECISION

42.The decision of the Arbitrator of 16 August 2006, as amended 29 September 2006, is confirmed.

COSTS

43.No order as to costs of the appeal.

Rod Weaver
Acting Deputy President

16 July 2007

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROD WEAVER, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE