Jaffarie v Quality castings Pty Ltd

[2015] NSWCA 335

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	Jaffarie v Quality Castings Pty Ltd [2015] NSWCA 335
Hearing dates:	22 September 2015
Decision date:	29 October 2015
Before:	Macfarlan JA at [1]; Ward JA at [39]; Sackville AJA at [54]
Decision:	(1)   Appeal allowed. (2)   Set aside the orders made by Deputy President Roche on 9 December 2014 and recorded in [315] and [316] of his judgment of that date. (3)   In lieu of those orders, order that: (a)   The orders contained in paragraphs 1 to 7 inclusive of the Arbitrator’s determination of 17 February 2014, and the Determination of 10 June 2014 insofar as it confirmed those orders, are set aside; and (b)   the whole matter is remitted to a different arbitrator for re-determination in accordance with the reasons in the Deputy President’s judgment of 9 December 2014 as varied by this judgment. (4)   Order that the first respondent pay the appellant’s costs of the appeal to this Court. (5) The first respondent is to have a certificate under the Suitors’ Fund Act 1951 (NSW), if qualified.
Catchwords:	WORKERS’ COMPENSATION – claim for lump sum compensation – alleged injury in course of employment to both lumbar and thoracic spine – arbitrator determined that appellant injured lumbar spine but not thoracic spine – worker appealed to Workers Compensation Commission – whether Deputy President erred in finding that the worker did not challenge the arbitrator’s finding about the thoracic spine – whether Deputy President’s misreading of the arbitrator’s reasons was an error of law – whether Deputy President had the power under the Workplace Injury Management and Workers Compensation Act 1998, s 352(7) to remit part only of the worker’s claims for re-determination   PROCEDURE – procedural fairness – Workers Compensation Commission erroneously found that appeals from an arbitrator to the Commission did not challenge the arbitrator’s finding that the worker did not suffer a thoracic spine injury – whether Commission finding that any such challenge would not have succeeded in any event indicated that the worker did not suffer any practical injustice as a result of a prima facie denial of procedural fairness – consideration of the weight to be given to contingent findings
Legislation Cited:	Suitors’ Fund Act 1951 (NSW) Uniform Civil Procedure Rules 2005 (NSW), r 51.51 Workers Compensation Act 1987 (NSW), ss 60, 66, 67 Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 352, 353
Cases Cited:	DCL Developments Pty Ltd v Range Harvester Australia Pty Ltd [2013] NSWSC 1025 1 WLR 1229 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 First Sport Ltd v Barclay’s Bank Plc [1993] 3 All ER 789 Jackson v Lithgow City Council [2008] NSWCA 312 Jennings v Credit Corp Australia Pty Ltd [2000] NSWSC 210; 48 NSWLR 709 King v Goussetis (1986) 5 NSWLR 89 Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam [2003] HCA 6; 214 CLR 1 Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 41 Tarabay v Leite [2008] NSWCA 259 The Australian Gas Light Company v The Valuer-General (1940) 40 SR (NSW) 126 Wade v Burns [1966] HCA 35; 115 CLR 537 Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105; 86 NSWLR 527 Workers Compensation Nominal Insurer v Adnan Al Othmani [2012] NSWCA 45
Texts Cited:	M Aronson and M Groves, Judicial Review of Administrative Action (5th ed 2013, Lawbook Co)
Category:	Principal judgment
Parties:	Sayed Jaffarie (Appellant) Quality Castings Pty Ltd (First Respondent) Registrar of the Workers Compensation Commission of New South Wales (Second Respondent)
Representation:	Counsel: A Campbell (Appellant) I D Roberts SC/J Malouf (First Respondent)   Solicitors: Sparke Helmore Lawyers (First Respondent)
File Number(s):	2014/374779
Decision under appeal	Court or tribunal: Workers Compensation Commission Jurisdiction: New South Wales Citation: [2014] NSWWCCPD 79 Date of Decision: 09 December 2014 Before: Deputy President Roche File Number(s): 10945/12, Case No A1 & A2

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 18 September 2012 Mr Sayed Jaffarie, the appellant, lodged with the Workers Compensation Commission of New South Wales an Application to Resolve a Dispute in which he alleged that on 12 June 2009 he suffered injuries to his thoracic and lumbar spine in the course of his employment by the first respondent. In a Determination dated 17 February 2014 the Commission, constituted by an Arbitrator, found that Mr Jaffarie did not sustain any injury to the thoracic or L1/2 regions of his spine but did sustain a lower lumbar region strain, the effects of which ceased by 19 January 2010. The Arbitrator awarded Mr Jaffarie weekly compensation until 18 January 2010 and rejected his claim under s 60 of the Workers Compensation Act 1987 (NSW) for medical and hospital expenses and under ss 66 and 67 of that Act for a lump sum payment for permanent impairment and for pain and suffering. On 10 June 2014 the Arbitrator refused an application by Mr Jaffarie for reconsideration of his February decision.

Mr Jaffarie appealed under s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“WIM Act”) against the Arbitrators’ two decisions to the Commission constituted by a Presidential member. By a judgment of 9 December 2014, the Deputy President relevantly found that the Arbitrator’s finding concerning Mr Jaffarie’s lumbar spine and the entitlements to which it gave rise should be set aside and remitted to a different arbitrator for re-determination as a result of the Arbitrator’s error in relation to Mr Jaffarie’s credit; that Mr Jaffarie did not challenge the Arbitrator’s finding that he did not suffer a thoracic spine injury; and that any such challenge would not in any event have succeeded because that finding did not depend on an assessment of Mr Jaffarie’s credit.

Mr Jaffarie appealed to this Court under s 353 of the WIM on the following grounds:

(1)   The Deputy President erred in finding that Mr Jaffarie did not challenge the Arbitrator’s finding that he did not injure his thoracic spine.

(2)   The Deputy President erred in concluding that the Arbitrator’s finding that Mr Jaffarie did not injure his thoracic spine was independent of his assessment of Mr Jaffarie’s credit.

(3) The Deputy President did not have power under s 352(7) of the WIM Act to remit part only of Mr Jaffarie’s claims for re-determination.

Held, upholding the appeal and remitting the whole matter to a different arbitrator for re-determination

Per Macfarlan JA and Sackville AJA (Ward JA agreeing):

(1) The Deputy President erred in finding that Mr Jaffarie did not challenge the Arbitrator’s finding that he did not suffer a thoracic spine injury ([17]-[20], [48]).

(2) The Deputy President erred in concluding that the Arbitrator’s findings did not depend on an assessment of Mr Jaffarie’s credit ([29]-[31], [43], [58]).

Per Ward JA and Sackville AJA:

(3) The finding referred to in (1) did not result in procedural unfairness as the Deputy President nevertheless considered whether Mr Jaffarie suffered a thoracic spine injury ([39], [54]).

(4) The error referred to in (2) did not amount to an error of law ([40]-[42], [59], [62]).

(5) The Deputy President erred in point of law by not explaining why he concluded that the Arbitrator’s decision did not depend on the flawed assessment of Mr Jaffarie’s credit ([61]-[62]).

Per Macfarlan JA

(6) The finding referred to in (1) resulted in procedural unfairness as the Deputy President only considered whether Mr Jaffarie suffered a thoracic spine injury on a limited, contingent basis ([27]-[28]).

Reference made to the weight to be given to contingent findings.

Tarabay v Leite [2008] NSWCA 259 at [34]; Wade v Burns [1966] HCA 35; 115 CLR 537 at 555; Jackson v Lithgow City Council [2008] NSWCA 312 at [60]; and King v Goussetis (1986) 5 NSWLR 89 at 94–95 referred to.

(7)   The error referred to in (2) was an error of law as it involved the misconstruction of the Arbitrator’s written determination ([32]).

First Sport Ltd v Barclay’s Bank Plc [1993] 1 WLR 1229; 3 All ER 789 at 793; Jennings v Credit Corp Australia Ltd [2000] NSWSC 210; 48 NSWLR 709 at [11]; DCL Developments Pty Ltd v Range Harvester Australia Pty Ltd [2013] NSWSC 1025 at [2] and The Australian Gas Light Company v The Valuer-General; (1940) 40 SR (MSW) at 146 cited.

Workers Compensation Nominal Insurer v Adnan Al Othmani [2012] NSWCA 45 referred to by Ward JA.

Judgment

1. MACFARLAN JA: On 18 September 2012 Mr Sayed Jaffarie, the appellant, lodged with the Workers Compensation Commission of New South Wales an Application to Resolve a Dispute in which he alleged that on 12 June 2009 he suffered injuries to his thoracic and lumbar spine in the course of his employment by the first respondent. In a Determination dated 17 February 2014 the Commission, constituted by an Arbitrator, found that Mr Jaffarie did not sustain any injury to the thoracic or L1/2 regions of his spine but did sustain a lower lumbar region strain, the effects of which ceased by 19 January 2010. The Arbitrator awarded Mr Jaffarie weekly compensation until 18 January 2010 and rejected his claim under s 60 of the Workers Compensation Act 1987 (NSW) (the “1987 Act”) for medical and hospital expenses and his claim under ss 66 and 67 of that Act for a lump sum payment for permanent impairment and for pain and suffering. On 10 June 2014 the Arbitrator refused an application by Mr Jaffarie for reconsideration of his February decision.

2. Mr Jaffarie appealed under s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the “WIM Act”) against the Arbitrators’ two decisions to the Commission constituted by a Presidential member.

3. By a judgment of 9 December 2014, Deputy President Roche relevantly found:

1. On his appeal, Mr Jaffarie did not challenge the Arbitrator’s finding that he did not injure his thoracic spine (Judgment [12] and [313]).

2. As a result of an error made by the Arbitrator in relation to a matter concerning Mr Jaffarie’s credit, his findings concerning Mr Jaffarie’s lumbar spine injury and the entitlements to which it gave rise should be set aside, with those matters to be remitted to a different arbitrator for re-determination (Judgment [314]–[315]).

3. Any challenge to the Arbitrator’s finding that Mr Jaffarie did not suffer a thoracic spine injury would not have succeeded because that finding did not depend on an assessment of Mr Jaffarie’s credit (Judgment [151]).

4. On appeal to this Court under s 353 of the WIM Act (the appeal being limited to points of law), Mr Jaffarie relies in his written submissions upon the following grounds:

1. Deputy President Roche erred in finding that Mr Jaffarie did not challenge the Arbitrator’s finding that he did not injure his thoracic spine.

2. The Deputy President erred in concluding that the Arbitrator’s finding that Mr Jaffarie did not injure his thoracic spine was independent of his assessment of Mr Jaffarie’s credit.

3. The Deputy President did not have power under s 352(7) of the WIM Act to remit part only of Mr Jaffarie’s claims for re-determination.

5. For the reasons given below, I consider that Grounds One and Two should be upheld and that the question of whether Mr Jaffarie suffered a thoracic spine injury should be remitted to a different arbitrator for re-determination, together with the other issues arising out of his claim.

6. I shall deal with each of the grounds of appeal in turn.

DID THE DEPUTY PRESIDENT ERR IN CONCLUDING THAT MR JAFFARIE DID NOT CHALLENGE THE ARBITRATOR’S FINDING THAT HE DID NOT INJURE HIS THORACIC SPINE?

7. To answer this question, it is necessary to refer to the circumstances leading up to the Deputy President’s judgment.

Mr Jaffarie’s appeal to the Deputy President

8. On 7 July 2014 Mr Jaffarie lodged identical Applications to Appeal in relation to the two decisions of the Arbitrator. They stated that the grounds of appeal were identified in the attached written submissions.

9. Those submissions had the following presently relevant features:

1. They stated that Mr Jaffarie appealed against the Arbitrator’s decision of 17 February 2014. (It is of no present consequence that they did not refer to his second decision rejecting the request to reconsider the application).

2. They referred to the Arbitrator’s decision as involving, inter alia, a finding that Mr Jaffarie did not injure either the thoracic or L1/2 regions of his spine.

3. Under the heading “GROUNDS OF APPEAL”, they referred to an identified error of the Arbitrator concerning Mr Jaffarie’s credit (being an error that the Deputy President subsequently found had occurred) as an error “capable of affecting the outcome of the case”.

4. They included the following under the heading “CONCLUSION”:

“(a) It is submitted it has been established the Arbitrator’s decision was affected by an error of fact, law or discretion under section 352(5) of the 1998 Act.

(b) It is requested the decision of the Arbitrator is revoked and the matter is referred to an AMS to assess the appellant’s entitlements to proposed treatment, incapacity, and lump sum compensation under sections 66 and 67 of the 1987 Act, and threshold for Work Injury Damages. It is also requested the AMS comments on causation regarding the appellant’s thoracic spine injury.

(c)   It is submitted the AMS has the jurisdiction to assess causation, treatment, impairment and threshold for Work Injury Damages regarding the appellant’s thoracic spine injury in light of the decision of Campbell J in Greater Western Area Health Service v Austin [2014] NSWSC 604, where he held:

‘[T]he implicit finding that liability and causation matters are within the powers of Arbitrators in the bifurcated system, and not of approved medical specialists is clearly contrary to the decision of the Court of Appeal in Haround and the considered dictum of Leeming JA in Tolevski.’ (At [28]).”

10. These submissions were filed on Mr Jaffarie’s behalf by Buttar, Caldwell & Co, solicitors, they being different solicitors from those who had represented him before the Arbitrator. The submissions stated that they had been approved by a named counsel.

11. On 17 September 2014 Buttar, Caldwell & Co advised the Commission that Mr Jaffarie had terminated their retainer. With the Commission’s assistance, Mr Jaffarie retained a barrister, Mr Paul Stockley, to act for him on his appeals to the Commission.

12. On 10 October 2014, during a teleconference at which Mr Stockley represented Mr Jaffarie, Deputy President Roche directed that the appeals “start again and set a timetable for the filing of fresh submissions” (Judgment [37]) because he considered that the documents filed in the appeals up to that point were unsatisfactory (ibid [30]–[31]).

13. On 31 October 2014, Mr Stockley filed submissions in accordance with his direction. They only challenged the findings concerning the injury to Mr Jaffarie’s lumbar spine and its consequences.

14. On 19 November 2014, Mr Stockley advised the Commission that he was no longer acting for Mr Jaffarie.

15. On 20 November 2014, the Registrar of the Commission sent an email to Mr Jaffarie confirming advice from Mr Jaffarie as follows:

“1. You are unable to get legal representation and you do not wish to delay the proceedings further to attempt to get legal proceedings.

2. You do not wish to make oral submissions at the hearing on 2 December 2014.

3. You would like the further appeal ground raised by Mr Stockley included in your appeal, in additional to the grounds of appeal in your appeal applications made by your original solicitors.

4. As you will not be legally represented and you will not be making oral submissions at the proposed hearing on 2 December 2014, you would like the appeals to be determined by Deputy President Roche on the papers, without holding a hearing.”

16. Deputy President Roche thereafter decided that it was appropriate to determine the appeals “on the papers”, without a formal hearing, and did so by his judgment of 9 December 2014.

Consideration

17. Although they could have made the point more clearly, in my view the written submissions filed by Buttar, Caldwell & Co (“the original submissions”) did challenge the Arbitrator’s finding that Mr Jaffarie did not suffer a thoracic spine injury. Specifically, the submissions stated that the appeal was against the Arbitrator’s decision, described as including the relevant finding, and that the Arbitrator’s error in determining credit affected the “outcome of the case” and “the decision”.

18. Moreover, the last sentence of paragraph (b) of the submission’s “CONCLUSION’ (see [9(4)] above) was consistent only with Mr Jaffarie challenging the thoracic spine injury finding in that it requested that the authorised medical specialist (the “AMS”) comment on “causation regarding the appellant’s thoracic spine injury”. The submission no doubt did this because of the drafter’s belief, evidenced in the next paragraph, that the AMS had jurisdiction to determine the causation issue (but not whether an injury had been suffered). It assumed, as did paragraph (c), that the appeals embraced a challenge to the finding that Mr Jaffarie did not suffer a thoracic spine injury.

19. Although Mr Stockley’s subsequent submissions did not specifically challenge the finding about the thoracic spine injury, those submissions did not supersede the original submissions. The Registrar’s email of 20 November 2014 made this clear when it stated that Mr Stockley’s submission was “in addition to” the grounds of appeal raised by the original appeals and stated in the original submissions.

20. Accordingly, the Deputy President erred in finding that Mr Jaffarie’s appeals did not challenge the Arbitrator’s finding that he did not suffer a thoracic spine injury. While the Deputy President referred to the last sentence of paragraph (b) of the “CONCLUSION” (Judgment [12]), he did not explain how that sentence could be reconciled with his conclusion that the thoracic spine injury finding was not in issue. Nor did he refer in this context to the other aspects of the original submissions to which I have referred. The Deputy President may have considered that Mr Stockley’s submissions superseded the original submissions. However, as I have pointed out, the Registrar’s email of 20 November 2014 indicated that that was not so (see [15] above). The Deputy President referred to that email but his paraphrase of its critical third paragraph did not make the point as clearly as the terms of the email itself (see Judgment [41]).

21. Mr Jaffarie sought this Court’s leave pursuant to r 51.51 of the Uniform Civil ProcedureRules 2005 (NSW) to rely upon his affidavit of 24 July 2015 (to which the Registrar’s email was attached). Leave was unnecessary at least in relation to the email because it was in evidence before the Deputy President, as demonstrated by [41] of his judgment. The remainder of the affidavit is also admissible in this Court because it identifies the terms of communications between Mr Jaffarie and the Commission that occurred prior to the determination of Mr Jaffarie’s appeals and that are relevant to the ambit of those appeals.

22. The following paragraphs of the affidavit confirm the conclusions I have expressed above:

“5.   I have attempted to inform the Registrar that I wish to proceed to challenge the finding that I did not sustain an injury to my thoracic spine.

6.   Following the email that I received on 20 November 2013 at 1.33pm I had a telephone discussion with Mr Parsons and we agreed that both the grounds in my original appeal and the further grounds raised by Mr Stockley in his submissions were to be heard by the Deputy President.

7.   I informed the Registrar that I did not want Mr Stockley to represent me anymore and when he asked me why I raised the point that he had rejected the arguments in relation to my thoracic spine and the tax returns.”

23. Whilst the Deputy President erred in concluding that Mr Jaffarie did not challenge the Arbitrator’s finding that he did not suffer a thoracic spine injury, whether Mr Jaffarie suffered any “practical injustice” as a result of this error must be considered in order to determine whether he was denied procedural fairness (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam [2003] HCA 6; 214 CLR 1 at [34]–[38]). Mr Jaffarie needed to show that the Deputy President’s error deprived him “of the possibility of a successful outcome” to his appeals (Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 at 147; see also Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc. [2014] NSWCA 105; 86 NSWLR 527 at [34]–[45]).

24. The first respondent contends that the Arbitrator’s credit error did not result in Mr Jaffarie suffering any practical injustice because the Deputy President added to his reference to the relevant Arbitrator’s finding not being challenged that “in any event, [that] did not depend on an assessment of Mr Jaffarie’s credit”. I add, for completeness that, for the reasons given by the Arbitrator, a challenge to the finding that Mr Jaffarie did not injure his thoracic spine would not have succeeded” (Judgment [151]). These two points were in effect one as both depended upon the view that the Arbitrator’s error concerning his assessment of Mr Jaffarie’s credit did not impact on his finding that Mr Jaffarie did not suffer a thoracic spine injury and therefore did not vitiate that finding.

25. In my view, the existence of this contingent finding of the Arbitrator does not indicate that Mr Jaffarie did not suffer any practical injustice. The contingent finding simply involved an assertion, in two sentences, that was not supported by any reasons. The brevity of the Deputy President’s treatment of the contingent finding in his judgment probably resulted from his belief that his first reason was sufficient to dispose of any question concerning a thoracic spine injury.

26. Contingent findings do not necessarily have the same status as determinative findings as they can be the product of considerably less detailed consideration than the latter. The principle of appellate restraint in intervening to reverse first instance decisions therefore has “diminished force” in relation to contingent findings (Tarabay v Leite [2008] NSWCA 259 at [34]; see also Wade v Burns [1966] HCA 35; 115 CLR 537 at 555; Jackson v Lithgow City Council [2008] NSWCA 312 at [60]; King v Goussetis (1986) 5 NSWLR 89 at 94–95), particularly where, as here, the contingent finding in question is not supported by reasons.

27. In my view, Mr Jaffarie suffered practical injustice because the Deputy President did not consider his challenge to the thoracic spine injury finding in the way that he would, and should, have if he had understood that that finding was challenged. Thus, notwithstanding the Deputy President’s contingent finding, I cannot conclude that Mr Jaffarie’s challenge would necessarily have failed if the Deputy President had been cognisant of it.

28. As a result, Mr Jaffarie was denied procedural fairness and is entitled to have the Deputy President’s orders declining to refer the thoracic spine issue to another arbitrator for re-determination set aside.

DID THE DEPUTY PRESIDENT ERR IN CONCLUDING THAT THE ARBITRATOR’S FINDING THAT MR JAFFARIE DID NOT INJURE HIS THORACIC SPINE WAS INDEPENDENT OF THE ASSESSMENT OF MR JAFFARIE’S CREDIT?

29. In concluding that the work accident of 12 June 2009 had not injured Mr Jaffarie’s thoracic spine, the Arbitrator said that “for the four or five months after injury … there were no complaints of pain to the thoracic spine” (Determination p 20). However, on the previous page of his Determination he had referred to Dr Breit’s report of 18 August 2009 in which the doctor noted “marked tenderness to light palpitation from the mid thoracic region to the sacrum both in the midline and the entire posterior aspect”. While this did not in express terms record a relevant complaint by Mr Jaffarie, it suggests that one was almost certainly made to Dr Breit at that time. Arguably, the Arbitrator concluded that this report was not evidence of a genuine complaint by Mr Jaffarie of thoracic spine pain because of the adverse view he took of Mr Jaffarie’s evidence generally, which he said that he would not accept if it was contradicted by other evidence (ibid p 13).

30. Moreover, the Arbitrator appeared to recognise that a consideration of Mr Jaffarie’s evidence was inevitably intertwined in his determination of the issues before him, including that relating to the thoracic spine, when he noted, after referring to Mr Jaffarie’s failure to complain of thoracic spine pain for four or five months after the incident, that “[w]hen looking at whether there has been injury and the causation of the injury I am obliged to look at the totality of the evidence and weigh it, not simply look at the applicant’s evidence on the point …” (ibid p 20). Some of Mr Jaffarie’s recorded complaints related simply to his “back” without any greater specificity, although some referred to his “lower back”.

31. In these circumstances, I do not consider that it can be concluded that the Arbitrator’s views on Mr Jaffarie’s credit did not influence his decision on the thoracic spine issue. Accordingly, I would answer the question posed by this ground of appeal in the affirmative.

32. The Deputy President’s error under this heading arose out of his misconstruction of the Arbitrator’s written Determination. This was an error of law in the same way that an error in the construction of a written contract is an error of law (First Sport Ltd v Barclay’s Bank Plc [1993] 1 WLR 1229; 3 All ER 789 at 793; Jennings v Credit Corp Australia Pty Ltd [2000] NSWSC 210; 48 NSWLR 709 at [11]; DCL Developments Pty Ltd v Range Harvester Australia Pty Ltd [2013] NSWSC 1025 at [2]). As Davidson J said in TheAustralian Gas Light Company v The Valuer-General (1940) 40 SR (NSW) 126 at 146, “the construction of a statute or any other instrument is always a question of law”. I do not see any basis for distinguishing, for this purpose, between a written judgment and other written instruments.

33. This ground accordingly provides an independent basis for concluding that the Deputy President erred on a point of law and a basis for granting the relief in relation to the Arbitrator’s Determination that the Deputy President should have granted.

DID THE DEPUTY PRESIDENT HAVE POWER UNDER s 352(7) OF THE WIM ACT TO REMIT FOR RE-DETERMINATION PART ONLY OF MR JAFFARIE’S CLAIMS?

34. Section 352 of the WIM Act concerns appeals from decisions of the Commission constituted by an Arbitrator to a presidential member of the Commission. Section 352(7) is in the following terms:

“On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.

Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.”

35. Contrary to Mr Jaffarie’s submissions, the Commission may refer part of a matter for re-determination under this sub-section because of, at the least, the Commission’s ability to give directions concerning the re-determination.

36. However, the point is not of present significance because, for the reasons given above in relation to Mr Jaffarie’s first two grounds of appeal, he is entitled to have the Deputy President’s partial remission of the matter for re-determination set aside.

ORDERS

37. Mr Jaffarie’s success on Grounds One and Two means that he is entitled not simply to have the Deputy President address his challenge to the Arbitrator’s finding in relation to the alleged thoracic spine injury (as would have been the case if he had succeeded on Ground One only) but to succeed in that challenge and have the whole matter, including the thoracic spine issue, referred to another arbitrator for re-determination: the Arbitrator’s error in relation to the assessment of Mr Jaffarie’s credit vitiated the entire first arbitration.

38. To achieve this result, the following orders should be made.

1. Appeal allowed.

2. Set aside the orders made by Deputy President Roche on 9 December 2014 and recorded in [315] and [316] of his judgment of that date.

3. In lieu of those orders, order that:

1. The orders contained in paragraphs 1 to 7 inclusive of the Arbitrator’s determination of 17 February 2014, and the Determination of 10 June 2014 insofar as it confirmed those orders, are set aside; and

2. the whole matter is remitted to a different arbitrator for re-determination in accordance with the reasons in the Deputy President’s judgment of 9 December 2014 as varied by this judgment.

4. Order that the first respondent pay the appellant’s costs of the appeal to this Court.

5. The first respondent is to have a certificate under the Suitors’ Fund Act 1951 (NSW), if qualified.

39. WARD JA: I have had the advantage of reading in draft the judgments of both Macfarlan JA and Sackville AJA and agree that the orders made by the Deputy President of the Commission should be set aside. I agree with that result for the reasons given by Sackville AJA. There was no lack of procedural fairness in the Deputy President dealing with Mr Jaffarie's appeal on the papers, as Mr Jaffarie wished him to do, and, although the Deputy President was mistaken in his view that there was no challenge to the Arbitrator's finding as to a thoracic spine injury and did so only as a contingent finding, the Deputy President did briefly address the contention that such a finding was wrong and gave his reason for so doing.

40. As to the Deputy President's apparent misreading of the Arbitrator's reasons (when stating that the Arbitrator's finding as to the thoracic spine injury did not depend on an assessment of Mr Jaffarie's credit), I have difficulty with the proposition that this of itself constitutes an error in point of law. The authorities to which Macfarlan JA has referred deal with errors in the construction of a statute or written instrument such as a contract. In Workers Compensation Nominal Insurer v Adnan Al Othmani [2012] NSWCA 45, Bathurst CJ, with whom McColl JA agreed, expressly left open the question whether misconstruing a decision of an arbitrator or a particular part of his or her reasoning would constitute an error in point of law ([89]). However, his Honour considered that there was an error in law in the conclusion by the Presidential member that the arbitrator had applied the wrong legal test to determine whether a contract had come into existence.

41. Handley AJA, in a separate judgment similarly expressed the conclusion that the misreading of the arbitrator's reasons was an error of law. His Honour did so on the basis that the misreading of the reasons of a higher court is undoubtedly an error of law and that the same principle must apply to a misreading of the reasons of the Court or tribunal below ([150]). The aspects of the misreading of the arbitrator's reasons that Handley AJA considered amounted to an error of law in that case were as to: whether the arbitrator had made an implicit finding that the tenant expected payment for certain work and believed he had entered into a legal relationship (whereas the arbitrator had rejected the tenant's evidence as to a promise of payment such that the question of payment was never discussed) ([141]); whether the arbitrator reached an implicit conclusion that there was no mutual arrangement to perform work for payment and no mutual intention to enter into a legally binding relationship (whereas the arbitrator had simply found that the conversations relied on to establish a contract had not occurred) ([143]); and whether the arbitrator had applied a subjective test when determining whether the parties intended to enter into a legal relationship ([145]).

42. In the present case, the Deputy President's misconstruction of the arbitrator's written determination was not as to any legal test applied by the arbitrator nor as to the arbitrator's findings on a question of law but, rather, was a misreading as to a factual matter in relation to the arbitrator's reasoning, namely whether the arbitrator's views as to Mr Jaffarie's credit had influenced the arbitrator's decision on the thoracic spine issue, that being a question of fact so that the arbitrator had determined against Mr Jaffarie. In the absence of authority directly on the question, I am troubled by the proposition that misreading the arbitrator's reasons on this aspect of the matter involved an error in point of law.

43. Rather, I have reached the conclusion that the orders made by the Deputy President should be set aside on the basis identified by Sackville AJA (at [62]), namely that the Deputy President erred in point of law in assuming the answer to the question that he was required to consider (and hence in not performing the task he was required under the statute to perform), that question being whether the arbitrator's finding that Mr Jaffarie had not sustained a thoracic spinal injury in the work related incident was affected by the arbitrator's flawed assessment of Mr Jaffarie's credibility.

44. In circumstances where the error made by the Deputy President led to the exclusion of the challenge in relation to the thoracic spine injury from the scope of the remittal ordered by the Deputy President, I consider the orders proposed by Macfarlan JA to be appropriate and agree that those orders should be made.

45. SACKVILLE AJA: I have had the advantage of reading the judgment of Macfarlan JA. I agree that the orders made by the Deputy President of the Commission must be set aside. However, I have reached that conclusion for different reasons. I also prefer a different order for the disposition of the appeal to this Court.

46. As Macfarlan JA has explained, the appellant (Mr Jaffarie) appealed under s 352(1) of the Workplace Injury Management and Workers’ Compensation Act 1998 (NSW) (WIM Act) to a Presidential Member of the Workers Compensation Commission against two decisions of an Arbitrator. In those decisions, the Arbitrator rejected a claim made by Mr Jaffarie that on 12 June 2009 he had suffered injuries to his thoracic spine in the course of his employment with the first respondent (Quality Castings). The appeal determined by the Presidential Member was limited to:

“a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”[1]

1. WIM Act, s 352(5).

47. The appeal to this Court is brought pursuant to s 353 of the WIM Act. Section 353 permits a party to proceedings before the Commission constituted by a Presidential Member who is aggrieved “by a decision of the Presidential Member in point of law” to appeal to the Court of Appeal.

48. I agree with Macfarlan JA that Mr Jaffarie’s appeal to the Commission included a ground challenging the Arbitrator’s finding that Mr Jaffarie did not sustain a thoracic spine injury in consequence of the work-related incident on 12 June 2009. The challenge was not stated with precision, but Mr Jaffarie put the Arbitrator’s factual finding in issue. The Deputy President therefore erred when he said in his reasons that:

“[t]he finding that Mr Jaffarie did not injure his thoracic spine has not been challenged on appeal, though it has been requested that an Approved Medical Specialist (AMS) comment on causation ‘regarding [Mr Jaffarie’s] thoracic spine injury’.”[2]

2. Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79 (Primary Judgment) at [12].

49. I accept that a failure by a decision-maker “to respond to a substantial, clearly articulated argument relying on established facts” may constitute a denial of natural justice or a constructive failure to exercise jurisdiction”. [3] I also accept that Mr Jaffarie’s challenge to the Arbitrator’s finding, although not formulated with precision, can be regarded as a substantial, clearly articulated argument. But in order for the Deputy President to have denied Mr Jaffarie natural justice, or constructively failed to exercise his jurisdiction, he must have failed to respond to the contention advanced by Mr Jaffarie.

    3. Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 at [24]-[25], [32] (Gummow and Callinan JJ, Hayne J agreeing); at [88] (KirbyJ); compare M Aronson and M Groves, Judicial Review of Administrative Action, (5th ed 2013, Lawbook Co) at [4.780].

50. Mr Jaffarie was unrepresented when he corresponded with the Registrar of the Commission. However, in response to specific inquiries, he informed the Registrar that he wished the Deputy President to determine his appeal on the papers, without holding a hearing.

51. The Deputy President accordingly dealt with the appeal on the papers. While his Honour did not appreciate from the documentation that Mr Jaffarie was challenging the Arbitrator’s finding that he did not sustain an injury to his thoracic spine in the work-related incident, he addressed that issue. It is true that he did so briefly. But he gave two inter-related reasons for concluding that he would have rejected any challenge by Mr Jaffarie to the Arbitrator’s finding.

52. The first reason was that the Arbitrator’s finding did not depend on Mr Jaffarie’s credibility as a witness. This assessment appears to have been based on his Honour’s understanding of the Arbitrator’s reasons, in particular the finding that Mr Jaffarie had made no complaint to medical practitioners that he had experienced pain in his thoracic spine for a period of at least four to five months after the incident.

53. The Deputy President’s second reason was that he accepted the Arbitrator’s reasons for finding that Mr Jaffarie had not sustained an injury to his thoracic spine in the incident. The Arbitrator’s reasoning did not depend solely on the absence of any recorded complaints by medical practitioners, but on his interpretation of the medical reports. The Arbitrator placed particular reliance on the report of the treating general practitioner which suggested that Mr Jaffarie did not experience pain in his thoracic spine until some time in 2011, two years after the incident.

54. In my respectful opinion, the Deputy President responded to Mr Jaffarie’s contention that the Arbitrator’s finding on the thoracic spine issues was erroneous. The brevity of the response does not alter the fact that his Honour addressed the contention and gave reasons for rejecting it. The fact that (if it be the fact) that his Honour misapprehended the evidence and misinterpreted the Arbitrator’s analysis, does not demonstrate a denial of procedural fairness. While other consequences may flow from erroneous reasoning, errors in reasoning do not of themselves demonstrate that a decision-maker has denied a party procedural fairness.

55. Procedural fairness requires, relevantly, that an appellant be given a fair opportunity to present his or her case on the appeal and that the Tribunal address the essential elements of the case as presented. Mr Jaffarie was given an appropriate opportunity to present his case. This included the option of an oral hearing, which he declined.

56. Procedural fairness increases the likelihood that a decision-maker will correctly determine the merits of a case. But an error by the decision-maker of itself does not demonstrate that there has been a failure to observe the rules of natural justice or to accord procedural fairness to the party affected by the error. Nor does the possibility that more detailed consideration of an argument might have avoided error establish that the decision-maker denied procedural fairness.

57. Mr Jaffarie relied on a second argument that the Deputy President erred in point of law. Mr Campbell submitted on Mr Jaffarie’s behalf that the Deputy President erred in law by misreading the reasons of the Arbitrator for finding that Mr Jaffarie did not sustain a thoracic spine injury in the work-related incident.

49. I accept that the Deputy President was mistaken when he said that the Arbitrator’s finding “did not depend on an assessment of Mr Jaffarie’s credit”. [4] A fair reading of the Arbitrator’s reasons shows that he took into account his assessment of Mr Jaffarie’s credibility in finding that Mr Jaffarie made no complaint about pain in his thoracic spine for some months after the work-related incident. That assessment also played a part in the Arbitrator’s finding that certain medical reports apparently favourable to Mr Jaffarie were prepared on the basis of inaccurate histories.

    4. Primary Judgment at [151].

50. The question that is significant for the appeal to this Court is whether the Deputy President erred in point of law. Although his Honour misread the reasons of the Arbitrator, I do not think that the misreading, of itself, constituted an error of law. The Arbitrator’s reasons did not constitute an instrument of the kind with which the authorities referred to by Macfarlan JA were concerned. The Deputy President was not interpreting a contract or statute or other instrument of a like character.

51. In order to determine whether the Deputy President erred in point of law, it is necessary to consider the task he was required to undertake. Under s 352(5) of the WIM Act, that task was to determine whether the Arbitrator’s decision was affected by any error of fact and, if so, to determine whether the error should be corrected.

52. The argument advanced by Mr Jaffarie in his appeal to the Commission, if somewhat obliquely, was that the Arbitrator’s assessment of his credibility was vitiated by a significant factual mistake and that the erroneous assessment of credibility led the Arbitrator to make a decision that was affected by an error of fact. On this argument, the decision affected by an error of fact was that Mr Jaffarie had not sustained a thoracic spinal injury in the work-related incident. The error of fact that affected the decision was the Arbitrator’s erroneous assessment of Mr Jaffarie’s credibility.

53. The Deputy President did not explain why he concluded that the Arbitrator’s decision did not depend on the flawed assessment of Mr Jaffarie’s credibility. That conclusion, unsupported by reasons, precluded the Deputy President from undertaking the task he was required by s 352(5) of the WIM Act to perform. That task was to consider whether the decision of the Arbitrator was affected by the error of fact that the Arbitrator committed – that is, the flawed assessment of Mr Jaffarie’s credibility. Since the Deputy President assumed the answer to the question he was required to consider, in my view he did not perform the task imposed by the statute. He therefore erred in point of law.

54. There may be other ways to characterise the Deputy President’s error. For example, it is arguable that he failed to give adequate reasons for his conclusion or, perhaps, that the decision on the thoracic spine issue lacked “an evident and intelligible justification”. [5] As these matters were not argued it is not necessary to consider them further.

    5. Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 at [76] (Hayne, Kiefel and Bell JJ).

Orders

64. Section 353(2) of the WIM Act provides as follows:

“The Court of Appeal may, on the hearing of any appeal under this section, remit the matter to the Commission constituted by a Presidential member for determination by the Commission in accordance with any decision of the Court and may make such other order in relation to the appeal as the Court thinks fit.”

65. Having regard to the statutory language, I think that the appropriate course is to set aside the orders made by the Deputy President and remit the matter to the Commission constituted by the Deputy President for determination in accordance with the reasons of the Court. It would be consistent with the Court’s reasons for the Deputy President to remit the matter to a different Arbitrator for determination in accordance with the reasons of the Deputy President, subject to the reasons of this Court insofar as they are inconsistent with those of the Deputy President.

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Endnotes

Amendments

29 October 2015 - Typographical error in [7] Headnote

Decision last updated: 29 October 2015