Hartley v A P & M T Mavin trading as Allan Mavin Carpark Service Station - [2025] NSWPICPD 15

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Hartley v A P & M T Mavin trading as Allan Mavin Carpark Service Station [2025] NSWPICPD 15
APPELLANT:	Stafford Keith Hartley
FIRST RESPONDENT:	A P & M T Mavin trading as Allan Mavin Carpark Service Station
SECOND RESPONDENT:	Workers Compensation Nominal Insurer (icare)
FILE NUMBER:	A1-W7054/23
PRESIDENTIAL MEMBER:	President Judge Phillips
DATE OF APPEAL DECISION:	26 February 2025
ORDERS MADE ON APPEAL:	1. Leave is granted to the appellant to adduce additional evidence on appeal pursuant to s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998. 2. The Certificate of Determination dated 9 April 2024 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – industrial deafness – construction of section 140 of the Workers Compensation Act 1987 – worker bears the onus to demonstrate non-insurance – WorkCover Authority of New South Wales v Sadler [2009] NSWWCCPD 127 considered and applied – section 261 of the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act) – failure to make a claim within the period required – awareness of potential rights to make a boilermakers deafness claim does not constitute awareness of injury – section 261(6) of the 1998 Act – A party is bound by the manner in which the hearing was conducted – University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 – applied – consideration of persons liable under section 261(8) of the 1998 Act
HEARING:	12 February 2025
REPRESENTATION:	Appellant:
Mr M Bechelli, solicitor
Whitelaw McDonald Lawyers
First respondent:
Mr J Malouf, counsel
Paul Stubbs Law Office
Second respondent:
Mr D Andersen, solicitor
HWL Ebsworth Lawyers
DECISION UNDER APPEAL:	Hartley v Workers Compensation Nominal Insurer (icare) [2024] NSWPIC 175
MEMBER:	Mr C Burge
DATE OF MEMBER’S DECISION:	9 April 2024

INTRODUCTION AND BACKGROUND

Mr Stafford Keith Hartley (the appellant) seeks compensation for permanent impairment and the provision of hearing aids as a result of industrial deafness which he claims was suffered during the course of his employment with A P & M T Mavin trading as Allan Mavin Carpark Service Station (the first respondent) between 1970 until 1980. During that time, the appellant was employed as a truck driver.
The appellant alleges the first respondent was uninsured at the deemed date of injury, being 1 January 1980; accordingly he made a claim on the Workers Compensation Nominal Insurer (the second respondent). The first respondent denies it was uninsured.
The first and second respondents denied liability for the appellant’s claim. The appellant originally commenced proceedings in the Personal Injury Commission (Commission) on 27 August 2022 (proceedings number W5447/22) however elected to discontinue proceedings on 25 November 2022. The appellant later commenced proceedings on 22 September 2023, with both proceedings claiming permanent impairment and the provision of hearing aids. The parties agreed the issues before the Member were:
(a) whether the appellant has established that the first respondent was not insured at the relevant time, and
(b) whether the appellant is precluded from bringing a claim by virtue of the operation of s 261 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
I would remark that injury was not in dispute before the Member.
The Member ultimately decided the appellant had not established the first respondent was uninsured at the time of the injury and he was also precluded from bringing a claim due to the operation of s 261 of the 1998 Act. It is from that decision the appellant now appeals.

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) 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.”
On Monday 3 February 2025, I held a directions hearing in this matter. One issue I raised was about the appellant’s response to the second respondent’s Notice of Contention. In the appellant’s submission in reply dated 20 June 2024, the appellant stated that he would need to rely upon additional evidence, in the form of three documents, in order to resist the Notice of Contention. The submissions are at paragraphs [15]–[34] of the reply submission. As the respondents had not had an opportunity, under the usual practice and procedure of appeals, to respond to this submission, I listed the matter for hearing on this discrete issue on 12 February 2025. I advised the parties if they wished to raise any other issue arising in the appeal, then they ought to give prior notice to their opponents of the nature of the issue to be raised.
Other than the discrete issue pertaining to the Notice of Contention and the appellant’s application to rely on additional evidence, I am satisfied that I can deal with the balance of the appeal on the papers.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.
The second respondent in its amended submissions dated 12 June 2024 raises what is described as a “Preliminary Issue”.[1] In these paragraphs, the second respondent takes issue with the orders sought by the appellant on this appeal. The major reason for this is the difference between the orders that were sought at first instance to those now pursued on appeal.
[1] Second respondent’s amended submissions 12 June 2024 (second respondent’s submissions), [4]–[8].
In reply the appellant submitted as follows:
“In relation to paragraph 8, there is no basis for the submission that the proceedings should be dismissed pursuant to section 54 of the Personal Injury Commission Act 2020. It is conceded that paragraphs 3 and 4 of the orders sought are incorrect and in lieu of an award for the appellant should instead seek an order for referral to an Approved Medical Specialist to determine the degree of hearing loss.”[2]
[2] Appellant’s submissions in reply 20 June 2024, [6].
At the directions hearing on 3 February 2025, I raised the matter of the “Preliminary Issue” as submitted by the second respondent. I advised the parties that having examined the appeal, I would either be confirming the Certificate of Determination dated 9 April 2024, or revoking it and remitting the matter for rehearing before a different member. In light of this indication and the appellant’s response, I said that in my view that dealt with the preliminary issue and I would not then need to decide that matter. The respondents to the appeal accepted this approach and as a result, I do not need to decide the “Preliminary Issue”.

THE EVIDENCE

In the proceedings before the Member, the first and second respondents relied on, inter alia, the witness statements of Mr Max Mavin and Mrs Marie Therese Mavin to address the issue of insurance. As these statements are brief, I set them out in full.

Statement of Max Mavin[3]

[3] Second respondent’s Reply to Application to Resolve a Dispute (reply), pp 182–183.

Mr Max Mavin’s statement dated 19 September 2022 is as follows:
“1.     My full name is Max Mavin and I currently reside at [redacted] in the State of New South Wales.
2.     I was born on [redacted].
3.     I am the brother of Allan Percival Mavin who was born on [redacted] and who died on May 2020 [partially redacted].
4.     In the 1960’s my brother and his wife Marie Therese Mavin acquired an AMPOL fuel distribution business (the business) which they conducted out of Kempsey.
5.     At the time of their acquisition of the business I was working in an accountancy practice … In the course of my duties at the accountancy practice I set up the structure for the business conducted in partnership by my brother and his wife.
6.     As part of the set up for the business I am certain all necessary insurances inclusive of workers compensation, public liability and property damage were put in place and have remained current to this day.
7.     I cannot recall whether insurances were obtained through a local AMP broker, Keith Halpin who was a good friend of my brother or whether insurance through GIO was obtained as that company carried the insurance for the AMPOL service station in Belgrave Street, Kempsey which was taken over by the business on acquiring the AMPOL distributorship.
8.     Exhaustive enquiries of AMP and GIO have been undertaken but due to the effluxion of time no records can be found.
9.     I am currently the financial controller of the corporate business A P & M T Mavin (Petroleum) Pty Ltd and I have assisted with the financial management of the partnership and corporate Mavin businesses since their inception. I have always placed insurance protection as a priority and ensured premiums were paid when due and the level of protection was constantly reviewed. I have no doubt workers compensation insurance was in place [when] the partnership of A P & M T Mavin commenced and was maintained throughout its duration.
10.    The trucks used by my brother in the partnership were fitted with all safety and regulatory requirements. No employees to my knowledge during the period of the business complained or commented on the condition of or noise issues relative to the trucks used in the business.
11.    Stafford Keith Hartley was known to me whilst employed in the business but I have no knowledge of any noise complaint from him.
13.    I believe Stafford Hartley after leaving the business engaged in a business involving bathroom renovation, building work and handyman activities all of which would have involved the use of noisy equipment.” (emphasis added)

Statement of Evidence of Marie Therese Mavin[4]

[4] Second respondent’s reply, pp 180–181.

Mrs Mavin, in a statement also dated 19 September 2022, states:
“1.     My full name is Marie Therese Mavin and I currently reside at [redacted] in the State of New South Wales.
2.     I am one of the Respondents named in these proceedings. Allan Percival Mavin (Allan) the co Respondent died on May 2020 [partially redacted].
3.     I was born on [redacted].
4.     I married Allan Percival Mavin on [redacted] and we remained together until his death.
5.     In early 1960 the automotive fuel distributorship conducted by AMPOL in Kempsey became available for acquisition. Allan successfully negotiated the distributorship and the resulting business was conducted by Allan and myself in partnership until 1982 when the incorporated entity A P & M T Mavin (Petroleum) Pty Ltd operated the business.
6.     My role in the partnership was mostly nominal in that I was not engaged day to day with the operation of the business nor was I involved in the financial management. I assisted with a variety of duties of a less physical supportive nature as and when required. I had little knowledge of and minimal participation in the financial affairs of the business for the reasons set out below.
7.     Notwithstanding my limited role in the business management I was firmly of the understanding all activities of the partnership were fully insured because of the volatile nature of the product we dealt with and the inherent risk to property and person. I was also acutely aware than any business failure or accident could result in the loss of our family home in which my husband and I were raising our three young children.
8.     Max Mavin (Max) my husband’s brother was employed at the time we acquired the business in an accountancy practice in Kempsey … [B]oth Max and Allan to the best of my knowledge and belief set up all necessary taxation, insurance and financial structures for the business.
9.     I was not involved in the selection of insurances for workers compensation, public liability and other forms of insurance so I am unaware of the workers compensation insurer for our partnership between 1970 and 1980.
10.    I have caused enquiries and searches to be made of persons and entities associated with the conduct of the partnership business and subsequent corporate business but because of the effluxion of time no records would appear to be in existence and no information is available to identify the workers compensation insurer for the relevant period.
11.    From my limited knowledge and involvement in the partnership business the trucks used in the business were modern for the time and in excellent condition with all safety and regulatory safeguards fitted. My husband took great pride in the condition and presentation of his work vehicles.
12.    I do not recall any complaints or comments from any driver of our trucks during the partnership years that were critical of any defect of the trucks being driven.” (emphasis added)

THE MEMBER’S REASONS

Whether the first respondent was uninsured

The Member referred to s 140 of the Workers Compensation Act 1987 (the 1987 Act) and noted the appellant bears the onus of proving the first respondent was uninsured at the time of the injury.[5]
[5] Hartley v Workers Compensation Nominal Insurer (icare) [2024] NSWPIC 175 (reasons), [9]–[10].
The Member referred to a statement of the appellant’s solicitor, Mr Bechelli, sworn in earlier proceedings before the then Workers Compensation Commission, which outlined the steps he took to ascertain the identity of the first respondent’s workers compensation insurer.[6] Of the 62 licenced workers compensation insurers as of 30 June 1979, the appellant made enquiries with ten, six of whom responded.[7]
[6] Second respondent’s reply, pp 13–17.
[7] Application to Resolve a Dispute (ARD), pp 81–86.
The Member noted the challenge faced by the appellant as it bore the onus to establish the first respondent was uninsured at the time of the injury. The appellant accepted that the legal onus to prove non-insurance falls on the worker, however argued that in certain circumstances, the evidentiary onus falls on the respondent, referring the Member to WorkCover Authority of New South Wales v Sadler.[8] The appellant submitted that in cases such as the present, the onus falls on the respondent, given it is in a position to provide proof of insurance, whereas the appellant is not.[9]
[8] [2009] NSWWCCPD 127 (Sadler).
[9] Reasons, [13].
The first respondent submitted that Sadler could be distinguished as, unlike Sadler, it had positive evidence that it was insured at the time of the injury. The positive evidence included the statement of Mr Max Mavin, a financial controller of the first respondent’s incorporated successor, and the statement of Mrs Marie Mavin whose late husband established the first respondent’s business. Mr Max Mavin had attested that the first respondent did have a workers compensation policy at the deemed date of injury however was unable to find any record given the effluxion of time. Mrs Marie Mavin said she was of the firm understanding all activities in the partnership were fully insured particularly given the volatile nature of the product. Mrs Mavin had also caused enquiries and searches to be made in relation to the insurance however due to the effluxion of time was unable to find any records.
The Member ultimately found that the sheer number of possible insurance providers who had not been contacted by the appellant, the lack of response from those insurers who had been contacted, coupled with the first respondent’s positive evidence in relation to insurance, resulted in a finding that the appellant had not discharged its onus to establish the first respondent was uninsured at the time of the injury,[10] and the claim against the second respondent had failed.
[10] Reasons, [22].

The limitation defence

The respondents also denied liability on the basis the appellant had lodged his claim out of time pursuant to s 261 of the 1998 Act.[11]
[11] Reasons, [24]–[25].
The appellant submitted that given the insidious nature of industrial deafness, it was impossible to know in 1980 that he had suffered industrial deafness. The appellant submitted s 261 of the 1998 Act does not apply as he could not have known he had suffered industrial deafness until he received the report from independent medical examiner, Dr MacArthur, dated 20 February 2019.[12] It was once he received that report that a claim was made on the second respondent under cover letter dated 27 March 2019.[13]
[12] Reasons, [26]–[27].
[13] ARD, p 36.
The respondents’ case was that the appellant was aware he had occupational hearing loss from as early as July 2017. The first respondent referred the Member to a file note from the appellant’s solicitors dated 5 July 2017[14] which recorded a conversation that took place between the appellant and his solicitor discussing hearing test results of 26 May 2017. The solicitor’s note recorded that once the appellant could provide evidence of employment with the respondent, the solicitor would open a file and look at making a claim for lump sum compensation and hearing aids.
[14] ARD, p 29.
The first respondent referred to an additional file note of the appellant’s solicitor dated 24 January 2018[15] which recorded the details of another phone conversation that took place between the appellant and his solicitor and “[t]he purpose was to go through the hearing test results of 26 May 2017.” The file note records that the appellant had no prior claims, was self-employed prior to working for the first respondent and he was going to chase up employment documents.
[15] ARD, p 30.
The Member noted the appellant attended a medico-legal appointment with Dr MacArthur on 18 February 2019, who was engaged by the appellant’s solicitor, and that a claim was subsequently made on the second respondent under letter dated 27 March 2019 relying on Dr MacArthur’s report. The Member noted there was no explanation provided by the appellant as to the delay between the hearing test results in 2017 and the making of his claim in 2019, however noted in a supplementary statement dated 20 October 2022,[16] the appellant said he was not aware he had suffered any hearing deterioration due to his employment with the first respondent until his solicitors received the report of Dr MacArthur in February 2019. The appellant acknowledged having hearing tests in May 2017 and August 2018 however denied being told the hearing deterioration was caused by his employment with the first respondent.[17]
[16] ARD, p 4.
[17] Reasons, [30]–[31].
Unlike the second respondent who was put on notice of the claim in 2019, no claim was made against the first respondent until 2022. The Member did not consider that the letter from the appellant to the first respondent on 7 February 2022 advising of a potential claim and requesting policy details constituted a claim being made and instead found the claim was in fact made on the first respondent on 8 April 2022, although noted whether the claim was made in February 2022 or April 2022 was inconsequential to the result.[18]
[18] Reasons, [32].
The Member was ultimately satisfied the appellant was aware of hearing loss and the potential to make a claim from as early as July 2017 after receiving legal advice from his solicitor.[19] As no explanation was given by the appellant for the delay of making a claim on the second respondent between 2017 and 2019, the appellant fell foul of s 261 of the 1998 Act and no special circumstances were identified to enliven the provisions of s 261(4). The Member noted in any event, given the reasons in relation to the insurance issue, the second respondent was not a party liable to pay compensation.[20]
[19] Reasons, [35].
[20] Reasons, [36].
The Member then turned to the question of whether the appellant had brought a claim within time against the first respondent. The Member noted the requirement that both the employer and insurer are to be notified of a claim and as the Member had found the claim against the second respondent was late, it must follow that the claim against the first respondent was also late.[21] The Member noted the provision in s 261(8) of the 1998 Act that in a case involving two or more persons liable in respect of compensation, a claim is to have been made when a claim is made on any one of those persons, however as the Member had already found the second respondent was not liable, the provision did not apply.
[21] Reasons, [37].

The Member found that the appellant had made his claim against the first respondent out of time and as no special circumstances were identified to enliven the provisions of s 261(4) of the 1998 Act, an award was made in favour of the respondents.
The Certificate of Determination issued on 9 April 2024 records:
“1.     The [appellant] suffered an injury in the nature of hearing loss in the course of his employment with the first respondent with a deemed date of injury of 1 January 1980.
2.     Award for the first respondent.
3.     Award for the second respondent.”

GROUNDS OF APPEAL

The appellant pursues the following eleven (11) grounds of appeal;
(a)    Ground One – The Member erred in determining that the [appellant] had the onus of demonstrating that the first respondents were uninsured at the time of his injury.
(b)    Ground Two – The Member erred in determining that as against the second respondent the [appellant] had the onus of demonstrating that the first respondents were uninsured at the time of his injury.
(c)    Ground Three – The Member erred in failing to give reasons for his finding that the first respondent was insured.
(d)    Ground Four – The Member erred in not considering all of the [appellant’s] evidence.
(e)    Ground Five – The Member placed undue weight on the fact that replies were received from only six insurers.
(f)    Ground Six – There was no need for the making of enquiries of any of the licensed insurers apart from AMP and GIO.
(g)    Ground Seven – The Member erred in giving any weight to the respondent’s evidence.
(h)    Ground Eight – The Member erred in not making a Jones v Dunkel inference in relation to the absence of evidence from Allan Mavin and Keith Halpin.
(i)    Ground Nine – Section 161 of the 1987 Act and section 232 of the 1998 Act.
(j)    Ground Ten – The Member erred in finding that the [appellant] was aware that he had suffered a compensable injury in 2017.
(k)    Ground Eleven – The Member denied the appellant procedural fairness.
The second respondent has advanced a Notice of Contention, which asserts that the appellant’s claim ought to have found barred by the operation of s 261 of the 1998 Act, which had been submitted to the Member but not dealt with.[22] I set out the arguments with respect to the Notice of Contention below.
[22] Second respondent’s submissions, [39].

LEGISLATION

Section 140 of the 1987 Act relevantly provides:
“140 Persons eligible to make claims (cf former s 18C (2)–(6))
(1) A claim under this Division may be made against the Nominal Insurer by any person who considers he or she has a claim against an employer for compensation under this Act or work injury damages in respect of an injury to a worker, if—
(a) the employer is uninsured, or
(b) the person claiming the compensation has been unable, after due search and inquiry, to identify the relevant employer.
(2) An employer is considered to be uninsured if the employer—
(a) had not obtained, or was not maintaining in force, a policy of insurance for the full amount of the employer’s liability under this Act in respect of the injured worker at the relevant time, or
(b) having been a self-insurer at the relevant time, has ceased to undertake liability to pay compensation to the employer’s own workers (but only if the claim cannot be paid under section 216 from any money deposited with the Authority or under any arrangement relating to the refund of any such deposit).
Section 261 of the 1998 Act provides:
“261 Time within which claim for compensation must be made
(1)     Compensation cannot be recovered unless a claim for the compensation has been made within 6 months after the injury or accident happened or, in the case of death, within 6 months after the date of death.
(2)     If a claim for compensation was made by an injured worker within the period required by this section, this section does not apply to a claim for compensation in respect of the death of the worker resulting from the injury to which the worker’s claim related.
(3)     For the purposes of this section, a person is considered to have made a claim for compensation when the person makes any claim for compensation in respect of the injury or death concerned, even if the person’s claim did not relate to the particular compensation in question.
(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, and either—
(a) the claim is made within 3 years after the injury or accident happened or, in the case of death, within 3 years after the date of death, or
(b) the claim is not made within that 3 years but the claim is in respect of an injury resulting in the death or serious and permanent disablement of a worker.
…
(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.
…
(8)     In a case where 2 or more persons are liable or partly liable in respect of compensation (whether or not that liability arises from the same or from different injuries), a claim is for the purposes of this section taken to have been made when a claim is made on any one of those persons.
…”

DISCUSSION

THE INSURANCE ISSUE

As to Ground One

The appellant notes that at reasons [10], the Member stated: “The [appellant] has the onus of demonstrating the first respondent was uninsured at the time of his injury.”
With respect to this statement, the appellant submits the following:
“6.     Subject to Ground 2, the appellant accepts that the Member’s statement (referred to above) would be correct if proceedings had been commenced only against the second respondent, the Workers Compensation Nominal Insurer (icare). However, the appellant submits that this cannot be correct in circumstances where the employer, A P & M T Mavin, (the first respondents) are a party to the proceedings.
7.     Workers compensation insurance is compulsory. The first respondents were therefore legally obligated to obtain a policy of insurance. In the circumstances it can make no sense to impose the onus of proving the non-existence of a policy on workers who have no involvement or responsibility in relation to obtaining insurance and who are not possessed of the knowledge of those affairs of their employer that would allow them to know whether a policy of insurance existed. To place the onus on workers would permit employers to remain silent on an issue in relation to which only they can have any knowledge.
8.      It is submitted that the statutory obligation to provide details of insurance to an injured worker pursuant to section 232 of the 1998 Act provides sufficient reason for placing the onus on the employer. Furthermore, it is submitted that … it would constitute a significant erosion of the obligation to obtain compulsory insurance if the onus was on the worker to prove that the employer had not complied with its obligation.
9.      In relation to the second respondent, it is conceded, (subject to Ground 2), that the onus rests on the appellant to prove non-insurance.
10.    However, the appellant submits that the onus in relation the second respondent is discharged in the event that it is determined that the first respondents have failed to prove that they were insured.”
The first respondent makes no submission on this issue, described as the “Insurance Issue” in its submissions.
The second respondent submits that Ground One represents “an incoherent attempt to rewrite s 140 so far as the onus of proof is concerned.”[23] The second respondent says that the appellant’s argument is inconsistent given that he asserts that he does bear the onus with respect to the second, but not the first, respondent. This is contrary, the second respondent argues, to the simple language of s 140.
[23] Second respondent’s submissions, [11].
In its reply submission 20 June 2024, the appellant effectively maintains his arguments in chief. I do not need to repeat these submissions.

Consideration

This argument is of importance to the appellant given the statement made by the Member at reasons [13]: “The difficulty for the [appellant], however, is that he bears the onus of proving lack of insurance” and the finding made by the Member at reasons [22] that “… the [appellant] has not discharged his onus of establishing that the first respondent was uninsured.” Pursuant to s 140 of the 1987 Act, a worker in the appellant’s position only has access to recovery from the second respondent if the employer is “uninsured” in accordance with the section.
The appellant complains that if he bears the onus of proof, this effectively would require him to prove a negative.[24]
[24] Appellant’s submissions 1 May 2024 (appellant’s submissions), [7].
For the reasons set out below, I do not accept the appellant’s argument in this ground.
Firstly, this argument was not put to the Member in the terms now asserted on appeal. The Member cannot be in error in not dealing with an argument that was not put.[25]
[25] Brambles Industries Ltd v Bell [2010] NSWCA 162 (Bell), [30].
Secondly, before the Member, counsel for the appellant submitted as follows:
“Now, the non-insurance question requires a negative proposition to be inferred on non-insurance. So … in terms of the usual question which the person who asserts must prove it’s … a little bit trickier. However, what it requires is that the evidence be sufficient to enable you to draw that proposition - that negative inference.”[26]
[26] Transcript of proceedings before the Member, 22 February 2024 (T1), 21.6-14.
And the appellant continued in this same vein:
“The inference has to arise when you take all that evidence together that in terms of the first respondent’s case, and I’m not – I don’t suggest for a minute, Member, that there’s any shift in the onus, the onus rests with the worker but an evidentiary onus arises if there’s sufficient evidence, if you draw that inference, the Ho, which on HO, in my submission, is open, then you have to consider whether the first respondent discharges the evidentiary onus …”[27]
[27] T1 24.30-25.5, referring to Ho v Powell [2001] NSWCA 168 (Ho).
As is apparent from these transcript extracts, at all times before the Member, the appellant accepted that he bore the legal onus, but that an evidentiary burden may fall upon the opponent if there is sufficient evidence for the negative to be inferred. This is contrary to what is now asserted on this appeal in this ground. A party is bound by the way the matter was conducted at first instance.[28]
[28] Caruana v Darouti [2014] NSWCA 85, [124].
What was put before the Member on the question of the onus of proof, I consider to be a correct statement of principle on such questions. What the appellant put to the Member reflects the approach described in Sadler. This approach followed a decision of Hunt J in Apollo Shower Screens Pty Ltd and anor v Building and Construction Industry Long Service Payments Corporation,[29] which is set out in Sadler at [74]–[75].
[29] Supreme Court of NSW, 11 February 1985, unreported (Apollo).
I would also remark that consistent with what I have described as falling from Sadler and Apollo, the learned author JD Heydon in Cross on Evidence (9^th Australian edition 2013 at [7165]) said the following about the proof of a negative:
“Where one party bears the burden of proving a negative but the other has greater means to produce evidence to contradict the negative proposition, then provided the party bearing the burden of proof has tendered some evidence from which the negative proposition may be inferred, the other party carries a tactical burden to advance in evidence any matters with which (of relevant) the first party would have to deal in the discharge of its legal burden of proof.”
The appellant complains that by bearing the burden of proof, the respondents could remain silent on the issue of insurance. I would remark that the first respondent’s witnesses, far from being silent, were certain that insurance had been taken out. However due to the passage of almost forty years they could not find documentation nor recall the identity of the insurer. This was their best evidence in the circumstance and was enough for the Member to find that the “tactical burden”, of which JD Heydon writes, was satisfied.
What the appellant put to the Member on the question of onus was correct. There was no error in the Member following that approach. In any event the argument pursued in Ground One is legally incorrect.
Ground One is dismissed.

As to Ground Two

The appellant asserts the following about the approach to construing s 140 of the 1987 Act:
“12. Subsection (2) is silent as to which party bears the onus of proof. However, having regard to the fact that subsection (2) considers the issue of being uninsured from the perspective of the employer i.e., it is the responsibility of the employer to obtain and maintain a policy of insurance in respect of the injured worker and also having regard to the provisions of section 232 of the 1998 Act which is titled Worker’s right to information (and which pursuant to section 35(4) of the Interpretation Act 1987 is taken to be part of the Act), it is submitted that an employer that does not provide the details of its insurer pursuant to a request made pursuant to section 232, or who does not forward any claim made by a worker to its insurer for determination must be considered to be uninsured. Any other conclusion, and in particular the conclusion that the onus of proving non-insurance nonetheless rests with the worker would make the right to information provided by section 232 illusory and would be contrary to the proper interpretation of section 140.
13. Section 232 is mandatory and provides a penalty for non-compliance. It does not any admit any qualifications that would allow an employer to be released from the obligation in circumstances where the information is no longer available or ascertainable.
14. Furthermore, there is nothing in the provisions of section 140 that supports the Member’s statement at paragraph 20 of the Reasons: The Act does not provide for the nominal insurer to provide coverage where the identity of an employer’s insurer is not ascertainable. The section makes no reference to the identity of an insurer not being ascertainable. The section does not suggest that an employer is to be considered as being insured if the insurer is not ascertainable. Instead, the section makes it clear that an employer is considered to be uninsured if a policy of insurance is not being maintained. It is submitted that it is difficult to reconcile the notion that an employer is maintaining a policy of insurance in circumstances where the existence of the policy is unascertainable.”
Just as in Ground One, the first respondent makes no submission with respect to Ground Two.
The second respondent says that the appellant’s argument in this ground is “… contrary to the language and structure of section 140.”[30]
[30] Second respondent’s submissions, [13].
This ground is not dealt with in the appellant’s reply submission.

Consideration

Ground Two is a derivation of the argument pursued by the appellant in Ground One. For the same reasons as I expressed in Ground One, this ground cannot succeed. The legal burden of proof resided with the appellant.
The appellant makes much of the Member’s remarks at reasons [20] at paragraph [14] of his submissions, which I have extracted in full (above). Reasons [20] provides:
“It is trite to say that the only relevant basis for recovery from the nominal insurer is where an injured worker establishes a lack of insurance coverage on the part of an employer or when the identity of the employer is not ascertainable. The Act does not provide for the nominal insurer to provide coverage where the identity of an employer’s insurer is not ascertainable. To say this is an unfortunate gap in the coverage offered by the workers compensation legislation in this State is an understatement, however, it is a gap into which, unfortunately, the [appellant] falls in circumstances where the defect in the scheme can only be remedied by Parliament, rather than a Member of the Commission.”
The appellant’s criticism of reasons [20] is not a fair approach to the Member’s reasoning process. Reasons [20] is part of the overall consideration that the Member was bringing to bear on the evidence. The Member had set out the evidence of the first respondent’s witnesses[31] where the evidence was given that the first respondent was certain that workers compensation insurance had been taken out. However given the effluxion of time, they could not identify the particular insurance company. At reasons [20] the Member, and I would read these as mainly obiter remarks, was assessing the evidence as revealing that an insurer could not be identified. Even were I to accept this as an error, it was an error that did not affect the result. The critical finding is that made at reasons [22], which was that the appellant had not discharged its onus of proof, in the face of the “positive evidence of Mrs Mavin and Mr Max Mavin as to the existence of an insurance policy at all times …”. This was a finding available on the evidence without error.
[31] Reasons, [14]–[18].
Ground Two is dismissed.

As to Ground Three

The appellant submits, at the end of his submissions on Ground Two, that the following grounds proceed on the basis that the Member was correct in determining that the appellant did indeed bear the onus of proving that the first respondent was uninsured at the relevant time.
In terms of Ground Three, the appellant refers to reasons [20] and states that the Member, apart from reciting the evidence from the parties, failed to “give any reasons sufficient or otherwise, for making the finding that the respondent was insured”.[32] This the appellant says is an error.
[32] Appellant’s submissions, [21].
As above, the first respondent makes no submission on this issue.
The second respondent says that this ground is “inappropriately articulated” and that the Member “did not make a ‘finding’ that the first respondent ‘was insured’ …”.[33]
[33] Second respondent’s submissions, [15].
In its reply submission at paragraph [10], the appellant asserts that the second respondent’s argument (at paragraph [15] of its submission) provides the “logical basis for the [appellant’s] submission that the onus rests with the employer.” Were the situation in accordance with the second respondent’s argument, this would create a lacuna in the legislative scheme incompatible with the notion of compulsory insurance.

Consideration

The appellant specifically alleges that the Member made a finding that the first respondent was insured. The appellant refers to reasons [20] apparently to support this argument, stating that this is the “implication” of what the Member has said.[34]
[34] Appellant’s submissions, [19].
I accept the second respondent’s argument that the Member made no such finding. A fair reading of reasons [20] reveals that such a finding does not appear in that paragraph, neither expressly nor by implication as the appellant asserts. Rather, in the passages of the decision where the Member is examining whether the first respondent was uninsured,[35] the essential question being considered was whether, on the evidence, the appellant had discharged his onus of proof. This is an entirely different question to making a finding (by implication or otherwise) that the first respondent was in fact insured. In many respects, this ground fails to grapple with the task the Member was undertaking – namely had the appellant discharged his onus to prove what is a negative? The answer to this enquiry was of course no, the appellant had not proven non-insurance.
[35] Reasons, [8]–[23].

The appellant has not referred to any other parts of the Member’s reasons to support this ground. I have closely read the decision and cannot find any passage that could constitute the asserted implied finding that the first respondent was in fact insured.
Ground Three has not been established. Ground Three is dismissed.

As to Ground Four

The appellant complains that the Member failed to consider all of his evidence about the enquiries made by his solicitor to ascertain the identity of the first respondent’s insurer.
The appellant points to the following statement made by the Member at Reasons [12]: “The [appellant’s] solicitor made enquiries with 10 of those insurers and received replies from six of them. It follows that 50 or so insurers did not have enquiries made of them by the [appellant’s] solicitor.” Pausing here, in the preceding paragraph of the reasons, the Member noted that the table of licensed insurers attached to the appellant’s solicitor’s statement revealed 62 insurers as at 30 June 1980. The appellant states that the Member’s statement at reasons [12] is correct.[36]
[36] Appellant’s submissions, [24].
At paragraph [25] of the appellant’s submissions, the appellant draws attention to eight specified aspects of the solicitor’s statement. I assume that the appellant is asserting that these paragraphs were not considered by the Member. The appellant asserts that the Member failed to “consider the entirety of the evidence referred to in Mr Bechelli’s statement and that the Member thereby erred in concluding: ‘It follows that some 50 or so insurers did not have enquiries made of them by the [appellant’s] solicitor’.”[37]
[37] Appellant’s submissions, [26].
As before, the first respondent makes no submission on this issue.
The second respondent submits that this ground is “misconceived.” The second respondent states:
“18. Submissions on this Ground are based entirely upon a statement dated 23 October 2020 by the appellant's solicitor, Mr Bechelli. This, together with its annexures, was proffered by the appellant in Matter No. WCC 5689/2020: see paragraph 12 of [the second respondent’s] written submissions dated 13 October 2023 in its Application to Admit Late Documents dated 15 February 2024.
19.    For obvious reasons, Mr Bechelli’s statement was not relied upon by the appellant in the present matter. It was instead relied upon by [the second respondent] (and the first respondent) to demonstrate the sheer impossibility of endeavouring to prove non-insurance by inferential means via enquiries of ‘modern day insurers’ pertaining to matters of ancient history. Paragraph 25 (vi)–(viii) of the appellant's submissions actually demonstrate this very point. It is significant that this material was not in evidence in Workers Compensation Nominal Insurer v Howard [2011] NSWWCCPD 37.
20.    The Member's approach effectively picks up the extensive written submissions for [the second respondent], culminating in the conclusions at paragraphs 24–26 therein.
21.    [The second respondent] acknowledges that it does appear there is an oversight error in the first two sentences of paragraph 12 of the Member’s reasons. However, that is of no moment. Firstly, the appellant concedes that no enquiries were made as to the possible cover provided by 16 of the licensed insurers as at 1980 (paragraph 25 (vi)). Secondly, the fact that four of the modern day insurers did not respond to Mr Bechelli’s enquiry shows that on any view there is an enormous gap in the number of licensed insurers/their alleged successors whose records have been searched for evidence of relevant insurance for the first respondent as at 1980.”

Consideration

The Member referred to Mr Bechelli’s statement at reasons [11]–[12]. The effect of these two paragraphs is to summarise the purport and effect of the statement, and I note that no issue is taken by the appellant with the accuracy of these paragraphs. I have read both the statement and these two paragraphs. The Member’s summary is a fair description of the statement.
I would also note that the contents of Mr Bechelli’s statement were not contentious. Consequently, the Member was not required to rule upon any conflict between the statement and other evidence. Where evidence is contentious, a Member must give a clear explanation why one piece of evidence is preferred over another.[38] This was not the case in this matter and as a consequence, the duty referred to in Mayne Group does not arise.
[38] Mayne Group Ltd v Mikhail [2006] NSWWCCPD 249 (Mayne Group), [41].
Additionally, it is not the duty of a Member to refer to every piece of evidence. The duty under s 294(2) of the 1998 Act is to provide a brief statement of reasons. This is supported by r 78 of the Personal Injury Commission Rules 2021 (Rules). Rule 78(2) sets out the obligation to give reasons and provides the following:
“(2) A determination of the appropriate decision-maker in applicable proceedings to which this rule applies is to be accompanied by a brief statement of the appropriate decision-maker’s reasons for the determination that includes the following—
(a) the appropriate decision-maker’s findings on material questions of fact, referring to the evidence or other material on which those findings were based,
(b) the appropriate decision-maker’s understanding of the applicable law,
(c) the reasoning processes that led the appropriate decision-maker to the conclusions made.
The Member’s decision on this issue has met these obligations.
Critically for this appeal ground, the appellant does not state, in terms, how the failure to refer to the specified sections of Mr Bechelli’s statement produced an error in the Member’s decision. The statement revealed the enquiries which were made by Mr Bechelli, none of which revealed the identity of any licensed workers compensation insurer. The Member was at pains to ascribe no criticism to the solicitor and his efforts to find the insurer,[39] describing the solicitor’s efforts as “admirable”.[40]
[39] Reasons, [12], [22].
[40] Reasons, [12].
Ground Four has not revealed how the Member was in error. Ground Four is dismissed.

As to Ground Five

The appellant refers to reasons [12] where the Member stated that “[the appellant’s] solicitor made enquiries with 10 of those insurers and received replies from six of them.”
After referring to Workers Compensation Nominal Insurer v Howard[41] the appellant put the following submission:
“In the circumstances it is submitted that the Member erred in considering the number of replies that were received from insurers as being relevant and determinative to the issue of whether the [appellant] had discharged the onus of proof in relation to non-insurance.”[42]
[41] [2011] NSWWCCPD 37 (Howard).
[42] Appellant’s submissions, [30].
The first respondent made no submission on this ground.
The second respondent says that this ground “does not meaningfully add to Ground 4” and that “[i]t was obviously relevant and correct for the Member to have regard to the sheer impossibility of proving non-insurance by inferential means.”[43]
[43] Second respondent’s submissions, [22].
In any event the second respondent says that the lack of a response from a number of insurers was not “determinative” as argued by the appellant. Rather the Member considered this evidence and the positive evidence from the first respondent and Mr Max Mavin in reaching his conclusion.[44] The second respondent also says that the facts in Howard were different in that there was no positive evidence in that case about insurance. Additionally, for the reasons stated in the second respondent’s amended submissions at [25], it is submitted that Howard was wrongly decided.
[44] Second respondent’s submissions, [23].

Consideration

Reasons need to be read as a whole.[45] When one considers the Member’s decision in this way, it is apparent that the Member undertook a broad evaluation of the evidence of the enquiries made by the appellant’s solicitor and the evidence of the first respondent’s witnesses – this was the proper approach for the Member to take.[46] I do not see any support for the appellant’s assertion in this ground, that the number of replies received to his solicitor’s enquiries were “determinative” on the ultimate question. Rather, the Member considered and weighed all the evidence that was germane to this issue and reached a decision that was available to him on the evidence in accordance with the passage from Langford that I have referred to.
[45] Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430.
[46] Australian Air Express Pty Ltd v Langford [2005] NSWCA 96 (Langford), [15].
There is no error in this approach.
Ground Five is dismissed.

As to Ground Six

The appellant says that the effect of Mr Max Mavin’s evidence was “unequivocal” that the first respondent was insured by either GIO or AMP.[47] The appellant says that he made enquires of both entities. The appellant then submits the following:
“33. If one were to form the view that Mr Mavin may have been mistaken about the identity of the insurer being either AMP or GIO so that enquiries should have been made with the other insurers, then that would put into question the entirety of Mr Mavin’s evidence including his evidence that the company was insured on the deemed date of injury.
34. In summary, having regard to Mr Mavin’s evidence it is submitted that it was not necessary in order to prove non-insurance to make enquiries with, and obtain replies from any of the licensed insurers apart from GIO and AMP and in this regard paragraph 6 of Mario Bechelli’s statement indicates that replies were received from both of GIO’s successors, AMP and Suncorp.”
[47] Appellant’s submissions, [31].
The first respondent makes no submission on this ground.
The second respondent says that the reasoning in this ground is “flawed”. The second respondent states if Mr Mavin’s evidence is read in its entirety, “he could not recall the identity of the relevant insurer as at 1980”. The second respondent continues that Mr Mavin “says at 1.10 -1.12 (ARD 75) that although the first respondent held relevant insurance, it was ‘too far back’ to recall with whom, that it was ‘possibly Allianz’.”[48] The second respondent also says that the appellant does not in terms deal with the responses received from GIO, AMP and Suncorp insurers.[49]
[48] Second respondent’s submissions, [27].
[49] Second respondent’s submissions, [28].

Consideration

In order to assess the appellant’s assertion about the “unequivocal” nature of Mr Max Mavin’s evidence, it is necessary to examine his evidence in some detail.
Mr Max Mavin’s statement dated 19 September 2022 appears at the second respondent’s Reply at pages 182–183. Relevantly Mr Mavin states, after setting out a number of formal matters which establish his role as accountant for the first respondent’s business, the following:
“6.     As part of the set up for the business I am certain all necessary insurances inclusive of workers compensation, public liability and property damage were put in place and have remained current to this day.
7.      I cannot recall whether insurances were obtained through a local AMP broker, Keith Halpin who was a good friend of my brother or whether insurance through GIO was obtained as that company carried the insurance for the AMPOL service station in Belgrave Street, Kempsey which was taken over by the business on acquiring the AMPOL distributorship.
8.      Exhaustive enquiries of AMP and GIO have been undertaken but due to the effluxion of time no records can be found.”
Mr Mavin later says
“9. … I have no doubt workers compensation insurance was in place [when] the partnership of A P & M T Mavin commenced and was maintained through its duration.”[50]
[50] Reply, p 183.
Mr Max Mavin also provided a statutory declaration which appears at ARD pp 74–80. This document is in the form of a table, the left-hand column containing a number of typed questions, the right-hand column containing the hand written answers of Mr Mavin. It was declared at Kempsey on 12 April 2019 before Mr Stubbs, solicitor. The declaration confirms that workers compensation insurance was taken out (answer to question 1.10) but the purport of answers to questions 1.11 and 1.12 was that records were either unavailable or did not exist (“No record”) and “Possibly Allianz?”[51] If one reviews the balance of the statutory declaration, an ongoing theme in the answers is that documents are not available and that it was “TOO FAR BACK”. Indeed, some answers are given followed by a question mark.
[51] ARD, p 75.
When I review Mr Max Mavin’s evidence, the inexorable conclusion is that I cannot accept the appellant’s assertion that it was “unequivocal” and did “not express any doubt that the partnership was insured by either GIO or AMP.”[52] Indeed this proposition now made on appeal stands in contradistinction to that which was submitted by the appellant to Member. At page 23 of the transcript of 22 February 2024, counsel for the appellant then addressing Mr Max Mavin’s evidence stated as follows:
“So that’s his best efforts, that’s – in his position he can’t find insurance and he’s the insured and arising from that directions [sic] issued on those parties which are unproductive.”[53]
[52] Appellant’s submissions, [31].
[53] T1 23.30–34.
The only matter that Mr Max Mavin was certain of was that insurance had been acquired. However, the identity of that insurer was not certain. Reading both the statement and the statutory declaration reveals a witness, doing the best he can after 39 years (in the case of the statutory declaration) and 42 years (with respect to his statement) to provide relevant assistance. Far from being “unequivocal”, the evidence is in fact entirely equivocal and uncertain as to the precise identity of the relevant insurer. The nature of such evidence after the passage of time in this case is entirely understandable.
I do not accept the assertions submitted by the appellant, at paragraph [34] of its submissions in chief, that in light of the contents of Mr Max Mavin’s evidence, the only necessary enquiries to be made were with GIO and AMP. The evidence when properly considered does not lead to that conclusion.
Finally, this appeal ground is somewhat obscure in terms of what the Member’s relevant error was for the purposes of intervention under s 352(5) of the 1998 Act. Appropriate enquiries were made with insurers other than GIO and AMP to no avail. There was no error on the part of the Member.
Ground Six has not been established. Ground Six is dismissed.

As to Ground Seven

In this Ground, the appellant is challenging the weight given by the Member to the evidence of Mrs Marie Mavin and Mr Max Mavin. Indeed the appellant submits that their evidence ought not to have been given “any weight” in the ground as it is argued. In the submissions in support of this ground, the appellant in some detail, points to specific aspects of both witnesses’ evidence which the appellant says are unsatisfactory and hence not worthy of being given weight by the Member.[54]
[54] Appellant’s submissions, [35]–[39].
The first respondent makes no submission on this ground.
In reply the second respondent submits that “Ground 7 is nothing more than an exercise in atomising the evidence given by Marie Mavin and Max Mavin. It seeks to argue matters which ought to have been put to Mr Max Mavin or Mrs Marie Mavin in cross examination. These witnesses were not required for cross examination in the present matter, nor in W5447/22”[55]
[55] Second respondent’s submissions, [29].
In its reply submission the appellant contends he has not made submissions that are not supported by evidence and there was no need to cross examine either witness.[56]
[56] Appellant’s submissions in reply, [12].

Consideration

There is a difficulty with the appellant’s approach in this ground. An appeal is not a review, the task is to identify and correct error.[57]
[57] Section 352(5) of the 1998 Act; Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 [17]–[31] (Raulston).
I have carefully reviewed the transcript of the hearing before the Member on 22 February 2024. Nowhere have I been able to find where the specific complaints now made in relation to specific parts of the Mavins’ evidence were put to the Member. I have not been taken to any passage(s) in the appellant’s submissions where these complaints were put to the Member.
I accept that the appellant’s submissions before the Member were of a general nature and were to the effect that the evidence of the Mavins did not rise to a point that required rebuttal.[58] I accept that this is a submission, at these transcript pages, going to the weight that the Member ought give to that evidence. The effect of the submission is that the evidence is so slight that it does not require a response from the appellant. I accept that a broad submission that this evidence should be accorded little weight was made to the Member.
[58] T1 30.29–31.16.
But the problem remains that the specific complaints now made about aspects of both witnesses’ evidence was not put to the Member in the terms now advanced. The Member can hardly be blamed, let alone said to be in error, in not dealing with a series of specific criticisms of the evidence which were not put to him.
The Member’s task was to perform the evaluative exercise of weighing all of the evidence.[59] I would remark that the Court of Appeal in Fisher v Nonconformist Pty Ltd[60] noted the primacy given to a specialist tribunal’s position as a fact finder, given the limited form of appellate review. Whilst this remark in Fisher was in relation to the appeal right to the Court of Appeal under s 353(1) of the 1998 Act, it also has some application to the appeal under s 352(5) of the 1998 Act. The statute requires error to be established and, in terms of this ground, establishing error of the type discussed at Raulston [19]. Without the proving of error, the Member’s finding will stand. Error has not been established.
[59] Langford.
[60] [2024] NSWCA 32 (Fisher), [37].
Ground Seven is dismissed.

As to Ground Eight

The appellant asserts that as a result of an absence of the first respondent calling evidence from Mr Allan Mavin, one of the first respondent’s partners and Mr Keith Halpin, insurance agent, that the Member erred in failing to draw a Jones v Dunkel inference.[61]
[61] Jones v Dunkel [1959] HCA 8; 101 CLR 298 (Jones v Dunkel).
The evidence is that both gentlemen passed away in May 2020. I note that while the appellant seems to suggest that the evidence about Mr Halpin’s death is unsatisfactory,[62] this was not challenged below. Indeed, it was the appellant’s solicitor who stated an understanding that Mr Halpin had died in his letter dated 7 February 2022 addressed to Mrs Mavin.[63] I have not been taken to any denial of this statement elsewhere in the evidence, so I proceed on the basis that this statement was not challenged. For the purposes of deciding this ground, I will proceed on the basis that both died in May 2020 as that was the uncontested evidence before the Member.
[62] Appellant’s submissions, [43].
[63] ARD, p 99.
The appellant submits the following:
“44.   The respondents have not provided any explanation as to the failure to tender evidence from Mr Halpin. Absent the existence of reliable information from other sources Mr Halpin would have been the first and foremost person from whom the respondents should have made an enquiry about insurance. He may have recollected the identity of the insurers with whom he was dealing with at the time; he may have been able to have provided an opinion as to the likelihood of insurance having being placed with GIO or AMP or any of the other licensed insurers; and he may even have recalled the names of some of the underwriters with whom he was dealing with at the time and thus could have provided important information to enable the respondents to track down the insurer.
45.    The failure to produce evidence from Mr Halpin goes further than drawing an inference pursuant to Jones v Dunkel.
46.    In [Howard] Acting President Roche at paragraphs 71 and 72 stated:
‘71.Mr Rowles referred to the following passage by Hodgson JA (Beazley JA agreeing) in Ho (at [14]):
’14. There is a long-standing controversy whether the civil standard of proof requires a numerical probability in excess of 50 per cent (see Davies v Taylor [1974] AC 207 at 219), or belief amounting to reasonable satisfaction (see Briginshaw v Briginshaw [1990] HCA 20; (1938) 169 CLR 638 at 642–3). My own opinion is that the resolution of the controversy involves recognition that, in deciding facts according to the civil standard of proof, the court is dealing with two questions: not just what are the probabilities on the limited material which the court has, but also whether that limited material is an appropriate basis on which to reach a reasonable decision. I discussed this in some detail in an article published at (1995) 69 ALJ 731.’
72. Mr Bechelli referred to his Honour’s statement in the next paragraph:
‘15. In considering the second question, it is important to have regard to the ability of parties, particularly parties bearing the onus of proof, to lead evidence on a particular matter, and the extent to which they have in fact done so: cf 69 ALJ at 732–3, 736, 740. As stated by Lord Mansfield in Blatch v Archer [1774] EngR 2; (1774) 1 Cowp 63 at 65 [1774] EngR 2; (98 ER 969 at 970):
‘All evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.’’
73. While it can often be difficult for a party to prove a negative, the following statement by Campbell JA (McColl JA and Handley AJA agreeing) in Rockcote is instructive:
‘78. If a plaintiff has the onus of proving a negative proposition, the fact that the defendant has greater means to produce evidence which contradicts that negative proposition, does not mean that the plaintiff ceases to have the onus of proof of that negative proposition. However, once the plaintiff establishes sufficient evidence from which, if that evidence is accepted, the negative proposition may be inferred, an evidential onus shifts to the defendant to adduce evidence that tends to show that the negative proposition is incorrect. If a defendant adduces such evidence, the plaintiff must then, as part of its overall burden of proof, deal with that evidence either by submission or argument. See generally Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561; Hampton Court Ltd v Crooks [1957] HCA 28; (1957) 97 CLR 367 at [1]–[2], 371–2; Baiada v Waste Recycling & Processing Service of NSW [1999] NSWCA 139; (1999) 130 LGERA 52 at [55], 64–65.”
47.    In relation to the above, the following is submitted:
a) The [appellant] made all possible enquiries to establish whether the respondents held a policy of insurance as at the deemed date of injury. Enquiries were made of a number of licensed insurer’s as detailed above. More importantly an enquiry was made of the respondents, Allan Mavin and Marie Mavin. As noted above, Allan Mavin passed away [in] May 2020 and was therefore still alive as of the date of Max Mavin’s statutory declaration made on 12 April 2019. At paragraph 22 of the Reasons the Member stated: No criticism, in my view, can be levelled at the [appellant’s] solicitor for their efforts in trying to enquire of relevant insurers as to whether a policy of insurance existed.
b) The respondents gave evidence asserting the certainty of the existence of an insurance policy but no basis for the confidence of that assertion was provided.
c) The respondents gave evidence of having made enquiries about the existence of a policy of insurance. The evidence of the respondents (who were in a position to give full particulars of those enquiries) did not rise above an assertion with no particulars being provided.
48.    In the circumstances it is submitted that the respondents had the power to provide details of the following:
a) The exhaustive enquiries that they say were made of AMP and GIO.
b) Whether Allan Mavin had been made aware of the claim and what he had said about the issue of insurance.
c) Whether Keith Halpin had been informed of the claim and what enquires were made of him.
49.    In the circumstances it is submitted that having regard to the evidence adduced by the [appellant] in relation to non-insurance, that the evidential onus shifted to the respondents to adduce evidence that tended to show the negative proposition. In failing to adduce the evidence referred to in the preceding paragraph the respondents failed to discharge their evidentiary burden.”

The first respondent makes no submission in relation to this ground.
The second respondent responds in the following terms:
“31. Ground 8 is of no substance, for the simple reason that the first respondent was not a party to any litigation, nor had any claim made against it, as at the time of death of the allegedly relevant witnesses Allan Mavin and Keith Halpin, both of whom passed away in May 2020 (see paras 40 and 43 of the appellant’s submissions). One can then well understand the exasperation expressed by Max Mavin in his e-mail of 12 May 2022 to the appellant’s solicitors (ARD 123).
32.    Further, it is pure speculation on the appellant’s part to assert that it is ‘inconceivable’ that these witnesses were not ‘consulted’ at the time Max Mavin completed his declaration on 12 April 2019. There is no occasion to speculate as to whether they were consulted, nor what they may have said if consulted.
33.    These are matters which ought to have been explored with Mr Max Mavin or Mrs Marie Mavin in cross examination.
34.    Paragraph 45 and following assert that the ‘failure’ to call evidence from Mr Halpin ‘goes further than drawing an inference pursuant to Jones v Dunkel.’ The effect of the submission is that the positive evidence proffered on behalf of the first respondent should be discounted. This is at odds with the decision of the High Court in Australian Security and Investments Commission v Hellicar; Australian Securities and Investments Commission v Brown; Australian Securities and Investments Commission v Gillfillan; Australian Securities and Investments Commission v Koffel; Australian Securities and Investments Commission v Terry; Australian Securities and Investments Commission v O’Brien; Australian Securities and Investments Commission v Willcox; Australian Securities and Investments Commission v Shafron [2012] HCA 17 at [155].
35.    Paragraph 47(b) wrongly submits that there was ‘no basis’ upon which it could be asserted with confidence that the first respondent had the required insurance cover. This flies in the face of the unchallenged evidence at paragraph 7 of Marie Mavin’s statement dated 19 September 2022 ([second respondent’s] reply page 180).”

Consideration

Before dealing with this ground, it is necessary to refer to the following piece of evidence that touches upon the position of Mr Halpin and the appellant’s submissions in this ground. Mr Max Mavin in his statement of 19 September 2022[64] says the following about Mr Halpin:
“7. I cannot recall whether insurances were obtained through a local AMP broker, Keith Halpin who was a good friend of my brother or whether insurance through GIO was obtained as that company carried the insurance for the AMPOL service station in Belgrave Street, Kempsey which was taken over by the business acquiring the AMPOL distributorship.”[65]
[64] Second respondent’s reply, p 182.
[65] Second respondent’s reply, p 182, [7].
No issue with this statement was taken by the appellant before the Member.
I have closely reviewed the transcript of proceedings and cannot find any submission that was made by the appellant to the Member which sought the making of a Jones v Dunkel inference in relation to the absence of the evidence of Mr Allan Mavin and Mr Halpin. The second respondent stated the following: “Mrs Mavin wasn’t served until after her husband passed away. He might’ve been able to assist on the question of insurance, one we’ll never know.”[66] The appellant in its reply submission did not challenge this statement or ask for an adverse inference to be drawn.
[66] T1 52.21-24.
It is not an error for a Member to fail to draw a Jones v Dunkel inference if it was not sought. I would remark that a party is bound by the manner in which the hearing was conducted.[67] The appellant had the opportunity to argue this point, as referenced in the passage from Metwally that I have referred to, and did not raise this point.
[67] University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 (Metwally), 483.
Notwithstanding this failure to take the point, the appellant’s Jones v Dunkel argument is not otherwise compelling. The appellant says that in relation to Mr Allan Mavin, he was alive when Mr Max Mavin made his statutory declaration and that it is “inconceivable” that he was not aware of it and “… did not have something to say about the issue of insurance.”[68] A similar point is made in relation to Mr Halpin.[69]
[68] Appellant’s submissions, [42].
[69] Appellant’s submissions, [43].
I will however deal with the Jones v Dunkel submission. I will make a number of preliminary points about the rule and its application in the Commission.
The Commission is a non-evidence based jurisdiction. The procedure before the Commission is relevantly set out in s 43 of the 2020 Act and r 73 of the Rules.
In South Western Sydney Area Health Service v Edmonds,[70] McColl JA (Giles and Tobias JJA agreeing) said as follows:
“While the Commission may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matter before it permits (s 354(2)), r 70 of the Workers Compensation Commission Rules 2003 provides that when informing itself on any matter, the Commission is to bear in mind the principles that evidence should be logical and probative, should be relevant to the fact in issue and the issues in dispute, that evidence ‘based on speculation or unsubstantiated assumption is unacceptable’ and that ‘unqualified opinions are unacceptable’.”
[70] [2007] NSWCA 16 (Edmonds), [127].
Whilst Edmonds dealt with the statutory provisions and rules applicable to the former Workers Compensation Commission, the Personal Injury Commission provisions (s 43 of the 2020 Act and r 73 of the Rules) are in the same terms as these prior provisions. The approach in Edmonds therefore remains relevant to these considerations.
The principles arising from Jones v Dunkel are a part of the laws of evidence. Notwithstanding this fact and the terms of s 43 of the 2020 Act, the Jones v Dunkel principles are available for application in the Commission in appropriate cases. This principle permits an inference to be drawn by the decision maker that the untendered evidence would not have helped the party who failed to tender it. However the decision maker is not required to draw the requested inference.
In Manly Council v Byrne,[71] the following was said:
“Thus, if a witness is not called two different types of result might follow. The first is that the tribunal of fact might infer that the evidence of the absent witness, if called, would not have assisted the party who failed to call that witness. The second is that the tribunal of fact might draw with greater confidence any inference unfavourable to the party who failed to call the witness, if that witness seems to be in a position to cast light on whether that inference should properly be drawn.
Even though a jury should be directed about the availability of the inferences which are recognised by Jones v Dunkel, it is entirely a matter for the jury whether it actually draws one, or both, of those inferences: Cafe v Australian Portland Cement Co Pty Ltd(1965) 83 WN (NSW) (Pt 1) 280 at 286, 287. Applying this principle to the situation of a trial by judge alone, there is no compulsion on the trial judge to draw either of the Jones v Dunkel inferences.”
[71] [2004] NSWCA 123, [51]–[52].
There are a number of aspects to the rule in Jones v Dunkel, one of which is that the inference “… cannot be used to make up any deficiency of evidence”.[72] In this case there was an argument about whether the first respondent held a current policy of workers compensation insurance at the relevant time (1980). Due to the effluxion of time the evidence on the question of insurance was incomplete and expressed in guarded terms, with various witnesses providing their best recollections rather any direct evidence of a fact(s) on the insurance question. In this submission the appellant is attempting to negative the evidence of Mrs Marie Mavin and Mr Max Mavin by use of the Jones v Dunkel inference with respect to the absence of two deceased witnesses. I would remark that neither was alive at the time the claim was made by the appellant on the first respondent on 8 April 2022.[73] I accept that enquiries were being made in 2019 about the correct identity of the first respondent and its insurer, but in my view it is drawing a long bow to suggest that those enquiries led to the making of the inference now sought by the appellant. Mr Max Mavin in his statutory declaration stated the lack of documentation and passage of time meant that he could not answer various questions. Mr Allan Mavin would likely have had the same problem and would have had to rely on his recollection after a considerable period of time had elapsed.
[72] Jones v Dunkel, 312 per Menzies J.
[73] Uncontested finding by the Member that the claim was made on this date – see reasons, [32].
The position with Mr Halpin is different. He is a non-party witness. The uncontested evidence of Mr Max Mavin was that he knew that Mr Halpin was a friend of Mr Allan Mavin but he did not know whether Mr Halpin was responsible for the placement of insurance for the first respondent. This is a very poor evidentiary basis for any inference to be drawn adverse to the first respondent. Indeed, it invites the making of an inference upon another inference. The first inference being invited to be made, based upon imperfect evidence, is that Mr Halpin was responsible for the placement of the workers compensation insurance in 1980. The next inference is that in 2019 he was present and available to be consulted about the enquiries being made by the appellant on the insurance question and that after the passage of the years he would be able to recall relevant matters.
If one takes the date the claim was made against the first respondent as being the relevant date, 8 April 2022, neither witness was available to provide any evidence as they were both deceased by that time.
I would also remark that a decision maker is not obliged to draw a Jones v Dunkel inference.[74]
[74] Byrne, [52].
The appellant seeks to raise a collateral argument about Mr Halpin’s evidence beyond the Jones v Dunkel submission. This appears in the appellant’s submission at paragraphs [45]–[49] which I have extracted above and goes to the argument about the evidentiary burden that I have dealt with in the earlier appeal grounds. This argument is predicated upon the assumption that Mr Halpin was “the first and foremost person from whom the respondents should have made an enquiry about insurance.”[75] This submission fails to deal with or acknowledge what Mr Max Mavin said about Mr Halpin’s possible involvement[76] which evidence was not challenged by the appellant. This argument invites a further inference to be drawn, namely that Mr Halpin was involved in the placement of insurance for the first respondent at the relevant time. No such inference was sought but, in any event, given the state of the evidence, it is apparent the inference is being pursued to undermine the weight given to the evidence of Mrs Marie Mavin and Mr Max Mavin. This is not a compelling submission and as a consequence I reject the submissions on this collateral point raised in the appellant’s submissions [45]–[49].
[75] Appellant’s submissions, [44].
[76] Second respondent’s reply, p 182, [7].
For the reasons outlined above this ground has not been established. The Member was not obliged to draw a Jones v Dunkel inference, especially in circumstances where such an inference was not sought by the appellant.
Ground Eight is dismissed.

As to Ground Nine

The appellant relies upon s 161(4) of the 1987 Act and s 232 of the 1998 Act. The appellant submits that a request, as envisaged by s 232 of the 1998 Act was made by letter dated 7 February 2022 addressed to Mrs Marie Mavin and that it was not answered. The appellant says that had the first respondent complied with its obligation under s 161(4) of the 1987 Act, the insurance issue would not have arisen.
With respect to s 232 of the 1998 Act, the appellant says the following:
“It is submitted that the worker was entitled to and should have received a direct response to his enquiry and that as a result of a failure to provide a response, the inference was available that there was no policy of insurance and that the Member erred in not given consideration to that inference.”[77]
[77] Appellant’s submissions, [54].
The first respondent makes no submission on this ground.
The second respondent says that this ground of appeal is entirely without substance and says that the relevant obligations can be found in ss 18A(2)(a) and 18B of the Workers’ Compensation Act 1926.[78]
[78] Second respondent’s submissions, [37].

Consideration

This ground can be dealt with shortly. I have examined the transcript of the submissions in this matter. Nowhere did the appellant put any argument on the insurance issue based on either s 161(4) of the 1987 Act or s 232 of the 1998 Act. This is an entirely new argument being raised on appeal. A party is bound by the conduct of its case.[79] This argument could have been raised before the Member but was not.
[79] Metwally, 483.
In any event the effect of this argument would be to invite disregarding the positive evidence of Mrs Marie Mavin which was filed in the proceedings and which was not challenged. Error has not been established.
Ground Nine is dismissed.

THE LIMITATION DEFENCE

As to Ground Ten

The appellant complains about the Member’s finding at reasons [37] that the appellant was aware of his hearing loss and ability to make a claim in 2017, based upon the appellant’s solicitor’s file notes of 5 July 2017[80] and 24 January 2018.[81] The appellant says that when the Member made the following finding at reasons [38] this was wrong, citing the remarks of Deputy President Roche in Inghams Enterprises Pty Ltd v Jones[82].[83] The appellant relies on Jones where the Presidential Member says at [89] that in relation to boilermakers deafness, awareness of injury will usually only become apparent to the worker after receiving that knowledge from an expert in the field. The file notes, the appellant argues, do not meet this test.
[80] ARD, p 29.
[81] ARD, p 30.
[82] [2012] NSWWCCPD 17 (Jones), [89]–[90].
[83] Appellant’s submissions, [59].
I would note that the appellant himself says that he only gained awareness after his solicitor received Dr Peter Macarthur’s report dated 20 February 2019, which was forwarded to him by letter dated 27 February 2019, shortly after that date.[84]
[84] Appellant’s statement dated 20 October 2022, ARD, p 4.
The appellant concludes:
“Furthermore, it is apparent from paragraphs 4 and 5 of the [appellant’s] statement dated 20 December 2022 that there was no material apart from the hearing test results that was available to the solicitor at the time of the conversations that were the subject of the file notes that would have enabled the solicitor to give any of the advice that the Member found to have been relevant to section 261 issues.”[85]
[85] Appellant’s submissions, [64].
The first respondent states that the file notes “demonstrate that the Appellant was aware that he received a hearing loss injury in or around 30 June 2017/5 July 2017 and it was caused by his employment with the First Respondent”.[86] The first respondent says that from 30 June 2017 the delay in making a claim until 7 February 2022 is unexplained.[87]
[86] First respondent’s amended submissions, 4 June 2024, [23].
[87] First respondent’s amended submissions, 4 June 2024, [24].
The first respondent further argues:
“25. The Appellant’s statement of 20 October 2022 (ARD 4) was plainly created to specifically address matters related to s 261. Despite this, no where in that statement does the Appellant address his consultations with his lawyers. This is unsurprising as, in accordance with the Member’s findings, the file notes of those consultations fly in the face of the Appellant’s evidence:
‘I was not however aware that any hearing deterioration from which I may have been suffering had been caused by my employment with A P & M T Mavin.’
26. The Member was perfectly correct to reject that evidence given the file notes referred to above. The Appellant must have been told by his lawyers that employment did cause hearing loss.”
The second respondent relies on the first respondent’s submissions on this ground.

Consideration

The respondents both relied on s 261 of the 1998 Act as a complete defence to the claim, which they say was brought out of time. Whilst there is no doubt that the date of injury was, as found by the Member, 1 January 1980, the awareness of the fact of injury did not arise until much later, 2017 on the respondents’ case, or shortly after 27 February 2019 on the appellant’s case when Dr Macarthur’s opinion was available and known to the appellant. I would note that for the purposes of s 261(6) of the 1998 Act, the injury is taken to have occurred when the worker first becomes aware. The effect of s 261(6) of the 1998 Act is to postpone the commencement of the limitation periods found earlier in s 261 to the time of the worker becoming aware of the injury. The necessity for this type of provision in the case of industrial or boilermakers deafness is plainly apparent as the injury may not reveal itself until many years after employment has ceased. Indeed, the Member accepted this point unreservedly at reasons [26]–[27]. At reasons [27] the Member noted that a claim was made on the Nominal Insurer on 27 March 2019.
Section 261 of the 1998 Act also requires a claim for compensation being made by the worker within the specified time periods. If there is more than one person liable, the claim is taken to have been made when it is made on one of them (s 261(8) of the 1998 Act).
I would also note that at reasons [32], the Member found that the claim was not made on the first respondent until 8 April 2022.
The critical finding by the Member was at reasons [35]–[36] where he accepts that as at 2017 the appellant was aware of his hearing loss and the potential to make a claim and that as a result, he has not brought his claim in time. The Member says:
“The [appellant] received legal advice to the effect that he had a potential claim against the first respondent, and all that was required was employment documentation to bring that claim against it.”[88]
[88] Reasons, [35].
The Member says that the file notes and what the appellant says in his statement of 20 October 2022 cannot stand together.
The relevant provision requiring consideration is s 261(6) of the 1998 Act, that is when did the appellant become first aware of the injury? Do the two file notes, that appear to have been determinative on this issue, reveal awareness of injury on the appellant’s part for s 261(6) of the 1998 Act purposes? I do not read the file notes as providing support for that proposition. Whilst they do talk about making a claim, they are silent on the question of injury. I accept that there is an inference arising in relation to the file notes, but the question to be decided relates to the appellant’s awareness of injury. In my view the question posed by the Member at reasons [35] is the wrong one and as a result produced error. The Member was concerned with whether the appellant was aware that he might have rights to make a claim, he did not grapple with or decide when the appellant first became aware of suffering injury for s 261(6) purposes. The file notes give rise to an inference of an awareness at best. They stand in contradistinction to the direct evidence led by the appellant at ARD page 4, paragraph [3], as to when he says he became aware, which was shortly after 27 February 2019. The Member did not reconcile the apparent divergence between what the file notes contained and the direct evidence of the appellant on this issue. Error of the type referred to in Raulston has been proven.

Ground Ten has been established.

As to Ground Eleven

The appellant alleges that the Member denied him procedural fairness on the following issue. At reasons [31] the Member made the following finding: “No explanation is provided in the [appellant’s] documentation as to why there was a delay between his obtaining hearing test results in 2017 and the making of the claim in 2019.” The appellant says that he did explain this delay in his statement, stating that he was not aware that he had suffered hearing loss until he read Dr Macarthur’s Report dated 20 February 2019.[89] The appellant complains that to the extent the Member considered that this statement and the solicitor’s 2017 file notes were inconsistent, the appellant was not given any opportunity to address that issue. The appellant says that the finding effectively amounts to saying that he was lying in the 20 October 2022 statement and such a serious finding ought not to have made unless the appellant had been given notice of the submission together with an opportunity to respond.
[89] Appellant’s statement dated 20 October 2022, [3].
In reply the first respondent submits as follows:
“23. In the First Respondent’s submission, the above file notes demonstrate that the Appellant was aware that he received a hearing loss injury in or around 30 June 2017/5 July 2017 and it was caused by employment with the First Respondent – there was simply no other employment that could have possibly caused it.
24.    From 30 June 2017 onwards, why there was a delay until 7 February 2022 to make a claim on the First Respondent is absolutely unexplained.
25. The Appellant’s statement of 20 October 2022 (ARD 4) was plainly created to specifically address matters related to s 261. Despite this, no where in that statement does the Appellant address his consultations with his lawyers. This is unsurprising as, in accordance with the Member’s findings, the file notes of those consultations fly in the face of the Appellant’s evidence:
“I was not however aware that any hearing deterioration from which I may have been suffering had been caused by my employment with A P & M T Mavin.”
26.    The Member was perfectly correct to reject that evidence given the file notes referred to above. The Appellant must have been told by his lawyers that employment did cause hearing loss.
27.    The Appellant’s submissions to the contrary ought to be rejected.
28.    There was no need for cross-examination given contradictory documentary evidence that was squarely submitted upon.
29.    The Appellant’s submissions on procedural fairness are confused, unsupported by law and are entirely unpersuasive. They warrant only summary responses:
a. As confirmed in the file notes, the delay was only due to the Appellant failing to provide documents proving his employment. That delay was absolutely unexplained.
b. The idea that the Appellant did not know his employment caused the hearing loss and therefore he was awaiting expert evidence on same is plainly contradictory to the file notes – which describe the legal advice he received. An expert report was never mentioned in the file notes.
c. It is reckless to submit that the Member found that the Appellant was lying. This was clearly not the finding. In any event, the idea that some further form of notice was required prior to submission is absurd and files in the face of precisely how the [Commission] operates on a daily basis. Section 261 was always an issue in dispute – in every proceeding. Indeed, the Appellant put on a statement directly to address it. Why he chose not to address the earlier advice of his lawyers is unknown. This was to the Appellant’s own detriment – as it should be.”
The second respondent relies on the first respondent’s submissions on this ground.
The appellant has filed a reply to the first respondent’s submissions. The appellant challenges the submission that in 2017 he must have been told that his employment caused hearing loss. The appellant says there is no evidence of this and even if it was the case, the appellant required specialised knowledge from an appropriate expert in the field. The appellant also says that while he addressed s 261 of the 1998 Act in his statement, he did not address the interpretation of the solicitor’s file notes. Finally, the appellant asserts that the s 78 Notice was deficient in that it inadequately set out the basis upon s 261 was deployed to deny his claim.

Consideration

Before dealing with the substance of this appeal ground, it is necessary that I set out a number of principles relevant to my considerations.
The rules of evidence do not apply to Commission proceedings.[90] The rules of procedural fairness apply,[91] but the nature, extent and application of this right must be considered in light of the legal context in which the decision maker is operating.[92] There is also no denial of procedural fairness if a party is aware of the case that he or she has to meet and that there is an opportunity to reply.[93] I would also remark, in light of the appellant’s complaint that the Member ought to have told him about his concerns, that a tribunal member is not required under the rules of procedural fairness to give parties a “running commentary” upon what the Member is thinking about the evidence.[94]
[90] Section 43 of the 2020 Act.
[91] Edmonds, [91].
[92] Aluminium Louvres & Ceilings Pty Ltd v Xue Qin Zheng [2006] NSWCA 34 (Aluminium Louvres), [37].
[93] New South Wales Police Force v Winter [2011] NSWCA 330 (Winter), from [81].
[94] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63, [48].
The way a dispute is conducted in the Commission involves the filing and exchange by the parties of all the material upon which they seek to rely, including statements.[95]
[95] See r 67 of the Rules.
It is apparent from a review of the material that all parties were aware that s 261 of the 1998 Act was in issue. It was the subject of a Direction in the earlier proceedings[96] and is flagged in the second respondent’s written submissions dated 13 October 2023, at paragraph [1].[97]
[96] Second respondent’s reply, p 184.
[97] Second respondent’s reply, p 215.
Indeed, the appellant knew that s 261 of the 1998 Act was in issue, hence the contents of his statement dated 20 October 2022 which went precisely to that issue. There was naturally no issue taken with the delay from 1980 until 2017, self-evidently deafness is a disease of gradual onset. Rather, the s 261 issue related to s 261(6) and the commencement of the time limits from the time when the appellant gained awareness of the fact of injury having been suffered.
Counsel for the first respondent dealt with the issue of the file notes and s 261 from transcript page 37, line 20, page 44, line 31. The second respondent dealt with the s 261 issue from transcript page 45, line 14, to page 46, line 26.
Counsel for the appellant answered this issue from transcript page 57, line 30, to page 59 - by submitting that the issues raised were not addressed because they are not relevant. Counsel did not argue that he was taken by surprise by the s 261 argument, he neither sought an adjournment nor leave to call his client to address this issue. No procedural fairness complaint was made with respect to the file notes. The appellant in fact answered the submission about the file notes.
The appellant was aware of the nature of the case he had to answer (Winter) due to the issue being raised in the papers exchanged inter partes (Aluminium Louvres) and his counsel answered it (Edmonds). There has been no denial of procedural fairness.
Ground Eleven has not been established.
Ground Eleven is dismissed.

NOTICE OF CONTENTION

The second respondent says in its Notice of Contention that the Member’s decision should be upheld on this alternate basis under s 261 of the 1998 Act. The second respondent submits:
“41. The respondents contend that the Member’s decision should be affirmed on the ground that the appellant’s claim is barred by section 261 of the Workplace Injury Management and Workers Compensation Act 1998, as no claim was made against the first respondent until 8 April 2022. Service of the claim upon the second respondent on 27 March 2029 [sic, 2019] is factually and legally ineffective for this purpose.
42.    The Member did note that claims must be served on employers, not merely upon insurers: see paragraph 36 of his Reasons.
43.    The following submissions should not be taken in any way as derogating from [the second respondent’s] adoption of submissions made by the first respondent in answer to Ground 10 and Ground 11.
44.    It cannot be denied that the [appellant] was aware of his ‘injury’ and its causal connection to ‘noisy employment’ by 27 March 2019. For example, see his Notice of Injury bearing that date at ARD 37. This accords with his evidence of having received Dr MacArthur’s medico-legal report dated 20 February 2019 ‘shortly thereafter’: paragraph 3 appellant’s statement dated 20 October 2022 at ARD 4. The claim at that time incorrectly named the employer as ‘A P & T M Mavin (Petroleum) Pty Ltd’.
45.    It also cannot be denied that the [appellant] was also aware of the true identity of his employer, by no later than 6 August 2020: see his statement bearing that date at Reply page 169, where he identifies the employer in paragraph 3 as “A P & M T Mavin trading as Allan Mavin Car Park Service Station”. That said, [the second respondent’s] primary position is that the appellant knew the true identity of the employer at least by March 2019: see the claim letter dated 27 March 2019 at ARD 36 and the accompanying Group Certificate at ARD 48.
46.    On the appellant’s best case, he was aware of all matters by 6 August 2020. However, no claim was made against the employer until 8 April 2022: see ARD 101.
47.    For the reasons given in the oral submissions on behalf of [the second respondent], these facts are alone fatal to the appellant’s claim for compensation.
48.    It should be trite to state the principle that it is legal liability in the employer which must be established in the first instance, before consideration can be given as to whether access can be had to the Nominal Insurer.
48.1 It has been held that ‘the direct liability of an insurer to a worker only arises when the worker has first established the liability of the employer’ and that ‘a worker cannot proceed directly against an insurer, but must first obtain some decision against the employer: see GIO General Limited v Malathounis [1997] NSWCA 124 and authority referred to therein.
48.2 Malathounis dealt with the applicable 1926 Act statutory provisions.”
The first respondent supports the arguments set out in the Notice of Contention.
In reply the appellant submits that it requires leave to adduce additional evidence to resist the Notice of Contention, being the following letters:
(a)    Letter dated 1 July 2019 addressed to Mr and Mrs Mavin and A P & M T Mavin (Petroleum) Pty Ltd from the appellant’s solicitors;
(b)    Email dated 4 July 2019 from Max Mavin on behalf of A P & M T Mavin (Petroleum) Pty Ltd advising that the letter had been sent to icare;
(c)    WIRO[98] email 23 January 2020, and
(d)    Letter dated 13 May 2020 making a claim on icare.
[98] Workers Compensation Independent Review Officer, re-established as the Independent Review Officer (IRO) from 1 March 2021.
The appellant says that it filed a claim in the former Workers Compensation Commission on 12 August 2020, but did not serve the claim on the first respondent although it had been named in the proceedings. The appellant submits:
“26. In relation to the statement at paragraph 41 of the respondent’s submissions that the claim is stature barred by section 261 because no claim was made against the first respondent until 8 April 2022, the appellant makes the following submissions.
i) Firstly, the appellant notes that there is nothing in the provisions of sections 254 and 261 that require a claim to be made on the employer as opposed to the insurer or nominal insurer.
ii) Secondly, it is apparent from the letter of Max Mavin dated 4 July 2019 that the partnership was delegating the handling of the claim to icare. It is also apparent from Max Mavin’s evidence in these proceedings, (being the statutory declaration and statement) that Max Mavin had authority to act as the agent of the first respondent in relation to the claim.
iii) Thirdly, it is submitted that the commencement of proceedings 4458/20 on 12 August 2020 constituted the making of a claim.
iv) Fourthly, it is submitted that the delay in making the claim was initially occasioned by a mistake in the identity of the employer. Once that mistake was realized as a result of the section 78 notice dated 31 May 2019 enquiries were directed to various insurers and the partnership. The employer who was legally obligated to provide the information passed the enquiry to IRO. Based upon information obtained on 23 January 2020 a claim was made on Allianz on 24 January 2020.
27. Having regard to the above, the appellant submits that even if there was a delay in making the claim the delay was due to a mistake and that the matters referred to above constitute a reasonable excuse for the purpose of section 261(4) of the 1998 Act.”
The appellant states that the s 78 Notice was deficient in terms of its failure to particularise the nature of the s 261 defence being taken and that this is contrary to the decision in Mateus v Zodune Pty Ltd t/as Tempo Cleaning Services.[99]
[99] [2007] NSWWCCPD 227 (Mateus), [45].
An oral hearing about the Notice of Contention and the appellant’s application for fresh evidence took place on 12 February 2025 before me.
At the hearing the appellant submitted that the additional documents for which leave was sought “… give an indication that certain things were going on and that an explanation could’ve been provided had we been given notice in accordance with section 78 that – of the specificity of the complaint pursuant to section 261.”[100] The appellant also submitted that he maintains that his awareness only arose in February 2019 having received Dr Macarthur’s opinion and “there was a lot of things that went on in this matter and I’m proceeding on the basis that we haven’t been given an opportunity to give - provide an explanation and that that explanation would have to be provided not to your Honour but in fresh proceedings before a Member.”[101]
[100] Transcript of proceedings before the President, 12 February 2025 (T2), 5.33–6.2.
[101] T2 8.11–16.
The first respondent in reply referred to s 352(6) of the 1998 Act with respect to the principles about receiving fresh evidence on appeal. The first aspect of s 352(6) it is submitted, namely that the material could not have been obtained, does not apply. Clearly the appellant possessed this material. The second aspect is that a failure to grant leave would cause substantial injustice in the case. The first respondent says that I would not receive the fresh evidence as it is of little or no value. The first respondent says that Mateus is not support for the proposition that a s 78 Notice must refer to every piece of evidence. The first respondent says that the appellant has failed to explain how he escapes the time limit under s 261 as against his client. The first respondent says that the answer that the explanation would be given in fresh proceedings before a member is in fact no answer.
The second respondent agrees that the additional documents do not take the matter further and would not affect the result. The second respondent points to the Member’s finding that the first respondent was not the subject of a claim until 8 April 2022 which is not contested, and the various documents cannot change that fact. Further the second respondent states that this is the first time in the proceedings that the appellant has raised this procedural fairness point.
The second respondent relies upon s 3 and s 42 of the 2020 Act and the requirement that cases be dealt with justly, quickly and cost effectively.
The second respondent contends that the statutory scheme requires claims to be made by workers on the employer. The only exception to this, the second respondent submits, is where the employer is deceased or deregistered, citing s 162 of the 1987 Act. I asked the second respondent was it their argument that the liability of the Nominal Insurer was derivative to the uninsured or putative uninsured employer and that proposition was accepted.[102]
[102] T2 20.22–29.
In reply the appellant argued that it was sufficient to merely name the employer in the application, relying upon s 142B of the 1987 Act, and that a claim was made in time against the Nominal Insurer.

Consideration

Application by appellant for additional evidence

Section 352(6) of the 1998 Act governs the situation where additional evidence may be received on appeal. There are two alternate bases upon which such evidence might be received under this provision. I accept that the first basis in s 352(6) is not relevant to my considerations. The question for me to consider is whether a failure to grant leave “would cause substantial injustice in the case.”
Section 352(6) of the 1998 Act has been examined in cases such as CHEP Australia Ltd v Strickland[103] and Northern New South Wales Local Health Network v Heggie.[104] The Court of Appeal stated that the exercise of the discretion to admit only arises if the Commission is satisfied of one of the two threshold matters. In both matters the Court examined whether, if the additional material was received, a different result would emerge. If the result would be different, the material is to be received. If the result would not be different having received the additional material, there cannot be said to be a substantial injustice by its exclusion.
[103] [2013] NSWCA 351, [27].
[104] [2013] NSWCA 255, [66].
The application for the additional material is finely balanced. The appellant, for the purposes of my considerations of the arguments in the Notice of Contention, must respond to the s 261 limitation period argument pursued by the respondents. The appellant says that the additional material “give[s] an indication that certain things were going on and that an explanation could’ve been provided had we been given notice in accordance with section 78 that – of the specificity of the complaint pursuant to section 261.”[105] Curiously and notwithstanding this submission, the appellant states that the explanation for s 261(4) purposes is not to be given to me on this appeal, but rather to a Member in fresh proceedings.[106] I say curiously because the application before me is to receive fresh evidence on this appeal on matters going to the s 261 limitation period argument where the respondents argue that there is no explanation given for various periods.
[105] T2 5.34–6.2.
[106] T2 8.15–16.
On their face, I accept that the additional documents may go to the issue being argued in the Notice of Contention. Whilst I am not certain that a different result would emerge, I ought have the material before me in the consideration of the arguments.
I therefore grant the appellant’s application to adduce additional evidence on this appeal, being the four specific documents referred to in the appellant’s reply submission dated 20 June 2024 at paragraphs [19], [20], [22], and [23].

The Notice of Contention

To the extent that the appellant resists the Notice of Contention based upon the argument that he was not afforded procedural fairness with respect to the submissions made about the 2017 file note, for the reasons that I dismissed this argument in Ground Eleven (above), I dismiss this argument in answer to the Notice.
The Member found that no claim as required by s 261 was made against the first respondent until 8 April 2022.[107] This is more than three years after the Member’s finding that the appellant had awareness of his capacity to make a claim in July 2017.[108] Indeed, I would remark this is more than three years after, on the appellant’s case, that he became aware of the fact of injury in late February 2019.
[107] Reasons, [32].
[108] Reasons, [35].

In terms of the second respondent, it says two things. Firstly, that service on the Nominal Insurer on 27 March 2019 is factually and legally ineffective. Secondly, it says that the delay between the file note in 2017 and 27 March 2019 is not explained.
Part 4 of the 1987 Act deal with Uninsured Liabilities. Section 138 of the 1987 Act defines an employer as follows:
“employer, in relation to a worker, includes a principal within the meaning of section 20 who is liable to pay compensation to the worker.”
Section 140 then sets out the circumstances where a claim may be made against the Nominal Insurer. Two circumstances are specified, the first is if the employer is uninsured, the second is where the employer cannot be identified “after due search and inquiry”. In this case there was initial doubt about the identity of the employer. Namely was it the Mavin’s company or their partnership? But any confusion about the correct employing entity, that is the partnership, was settled by icare’s s 78 Notice dated 31 May 2019[109] where it is admitted that the partnership was the employer at the relevant time.[110] Due search and enquiry as contemplated by s 140(1)(b) of the 1987 Act established the correct identity of the employer by 31 May 2019. This therefore leaves the proof on non-insurance on the part of that employer being the only gateway for the appellant to establish liability on the part of the Nominal Insurer.
[109] ARD, p 65.
[110] See ARD, p 66, “Reasons for the decision”, first bullet point.
Section 261(8) of the 1998 Act provides for the following circumstance: where two or more persons are liable or partly liable in respect of compensation, a claim is taken to have been made when it is made on one of them. At the time the “claim” was made on the Nominal Insurer on 27 March 2019, the identity of the employer was still being investigated and was settled beyond doubt shortly afterwards by virtue of the s 78 Notice dated 31 May 2019. Thereafter the appellant made enquiries to attempt to identify the relevant insurer, and some of the documents admitted by me in this appeal go to that question and the awareness of the appellant of certain things at different times.
It cannot thus be said that as at 27 March 2019, the Nominal Insurer was a “person liable or partly liable” as contemplated in s 261(8) of the 1998 Act. This is not a case of the employer being deceased (one the partners remained alive) or deregistered as contemplated in s 162 of the 1987 Act. Neither does the Nominal Insurer satisfy the definition of “employer” in s 138 of the 1987 Act. What happens is that under s 142A of the 1987 Act, the Nominal Insurer becomes the insurer of the employer subject to the 1987 and 1998 Acts, s 142A and the regulations. As at 27 March 2019 when the claim was made on the Nominal Insurer, the Nominal Insurer had not yet become the insurer in accordance with s 142A of the 1987 Act. The Nominal Insurer was thus not a person liable or partly liable for compensation as contemplated by s 261(8) of the 1998 Act, as at that time it was neither the employer (as defined) nor was it the insurer. The service of the claim upon the Nominal Insurer on 27 March 2019 was thus ineffective to enable the appellant to rely on that date for s 261(8) of the 1998 Act for limitation purposes.
The second respondent also points to s 148A of the 1987 Act, the Nominal Insurer’s right of subrogation. That provision refers to the Nominal Insurer making a payment, for which the employer was liable, and grants the Nominal Insurer the employer’s subrogation rights to recover against other persons. This provision reinforces the decision I have made above that the Nominal Insurer is not a person liable or partly liable for s 261(8) purposes. Section 148A of the 1987 Act refers to the employer’s liability for the compensation paid, not to any liability on the part of the Nominal Insurer. The scheme of the provisions I have referenced above is to define the circumstances in which the Nominal Insurer can assume liability for an injury. Such liability does not automatically arise, rather there are prerequisites that need to be satisfied before any question of liability on the part of the Nominal Insurer arises.
The argument pursued in the Notice of Contention that the service of the claim on the Nominal Insurer on 27 March 2019 was ineffective for the purposes s 261 of the 1998 Act is established. The appellant failed to make a claim upon the first respondent within the three-year period provided for in s 261 as extended by s 261(6) of the 1998 Act. The appellant on his own case says that he became aware of suffering injury shortly after receiving Dr Macarthur’s Report dated 20 February 2019. No claim was made on the first respondent until 8 April 2022, which is more than three years after the date the appellant became aware. The issue of any explanation for the delay in making a claim on the first respondent, as contemplated by s 261(4) of the 1998 Act, does not arise due to the expiry of the three-year period. The appellant is statute barred against the first respondent.
In the alternative, if I assume that the three-year period in which to make a claim against the first respondent commenced upon the receipt of the s 78 Notice dated 31 May 2019, as being the date that any confusion about the correct identity of the employer was resolved, the claim made on 8 April 2022 is obviously within the requisite three-year period for s 261 purposes, although outside the period of six months. However, the appellant has provided no explanation of the delay in making the claim for the period after he received Dr Macarthur’s opinion until the claim was eventually made on the first respondent. As I have said above, the s 261 issue was notified, the appellant knew it was an issue and the appellant has not provided an answer or explanation. On this alternate basis, in the absence of an explanation as required by s 261(4) of the 1998 Act, the appellant is statute barred.

DECISION

I have dismissed each appeal ground save and except for Ground Ten. I have also found that the second respondent has established its Notice of Contention.
In the circumstances, the appellant’s success on Ground Ten does not serve to affect the overall result. The result finds the appellant statute barred from pursuing a claim against the first respondent as well as failing to have the Member’s finding that the appellant failed to discharge the burden of proof set aside. The net effect of these decisions is that the Certificate of Determination, which entered awards in favour of both respondents, must be confirmed.
I make the following orders:
1. I grant the appellant leave to adduce additional evidence on the appeal pursuant to s 352(6) of the 1998 Act.
2. The Certificate of Determination dated 9 April 2024 is confirmed.

Judge Phillips
PRESIDENT

26 February 2025