Jaffarie v Quality Castings Pty Ltd
[2014] NSWWCCPD 79
•9 December 2014
| WORKERS COMPENSATION COMMISSION | |||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||
| Status: Appeal to the Court of Appeal allowed in part (finding of no injury to thoracic spine revoked) - Jaffarie v Quality Castings Pty Ltd [2015] NSWCA 335 | |||
| CITATION: | Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79 | ||
| APPELLANT: | Sayed Jaffarie | ||
| RESPONDENT: | Quality Castings Pty Ltd | ||
| INSURER: | QBE Workers Compensation (NSW) Ltd | ||
| FILE NUMBER: | A1 and A2 10946/12 | ||
| ARBITRATOR: | Mr J Harris | ||
| DATE OF ARBITRATOR’S DECISIONS: | 17 February 2014 and 10 June 2014 | ||
| DATE OF APPEAL DECISION: | 9 December 2014 | ||
| SUBJECT MATTER OF DECISION: | Extension of time to appeal; fresh evidence on appeal; credit findings in the absence of cross-examination; application of principles in Browne v Dunn (1893) 6 R 67; alleged denial of procedural fairness by giving an extempore decision; improper allegation of bias in consideration of medical evidence; improper allegation of bias in conduct of reconsideration application; alleged denial of procedural fairness in conduct of reconsideration application; failure to refer to relevant evidence in tax records; whether failure to refer to relevant evidence affected credit findings; claim for lump sum compensation and weekly compensation; consequence of finding that effect of injury had ceased; Bindah v Carter Holt Harvey Wood Products Australia Pty Ltd [2014] NSWCA 264 discussed and applied; Peric v Chul Lee Hyuang Ho Shin Jong Lee & Mr Iannazzo Ran t/as Pure and Delicious Healthy [2009] NSWWCCPD 47 not followed; s 65 of the Workers Compensation Act 1987; ss 293, 319, 321, 326, 350(3) and 352 of the Workplace Injury Management and Workers Compensation Act 1998; failure to comply with Practice Direction No 6; failure to properly identify grounds of appeal; attempt to conduct appeal as a re-hearing | ||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||
| HEARING: | On the papers | ||
| REPRESENTATION: | Appellant: | Self-represented | |
| Respondent: | Sparke Helmore Lawyers | ||
| ORDERS MADE ON APPEAL: | 1. Time to appeal the Arbitrator’s determination of 17 February 2014 is extended until 8 July 2014. 2. Paragraphs 2, 3, 4, 5, and 6 of the Arbitrator’s determination of 17 February 2014, and the determination of 10 June 2014, are revoked and the matter remitted to a different Arbitrator for re-determination in accordance with the reasons in this decision. 3. Paragraphs 1 and 7 of the Arbitrator’s determination of 17 February 2014 are confirmed. 4. The respondent employer is to pay the appellant worker’s costs of the appeal, incurred up to 19 November 2014, as agreed or assessed. 5. Costs of the second arbitration are to follow the outcome of that arbitration. | ||
INTRODUCTION
This appeal involves a claim for weekly compensation, lump sum compensation for permanent impairment, and compensation for medical expenses as a result of a back injury allegedly received when the worker lifted a mould in the course of his employment in June 2009.
The principle issues on appeal concern the extension of time to appeal, fresh evidence or additional evidence on appeal, the Arbitrator’s assessment of evidence, the Arbitrator’s credit findings (in the absence of cross-examination), and the Commission’s power to determine a claim for lump sum compensation in light of recent appellate authorities.
Because of the unsatisfactory way the appeal has been presented, it is necessary to set out the factual and procedural background in detail before dealing with the substantive issues raised on appeal.
BACKGROUND
The appellant worker, Sayed Jaffarie, was born in Afghanistan in 1987. He came to Australia on a spousal visa in November 2008. After being unemployed for four months, he obtained employment with the respondent, Quality Castings Pty Ltd, as a casual full-time moulder. The offer of employment, which Mr Jaffarie accepted and signed on 25 March 2009, described his position as “probationary for a period of three months”.
In an Application to Resolve a Dispute (the Application) filed with the Commission on 18 September 2012, Mr Jaffarie alleged that he injured his lumbar and thoracic spine on 12 June 2009 when he lifted a mould weighing approximately 15 to 25 kilograms. Though he initially claimed weekly compensation from 4 September 2009 to date and continuing, that claim was amended at the hearing to be for a closed period up to 31 December 2012.
Mr Jaffarie also claimed lump sum compensation in respect of a 17 per cent whole person impairment (12 per cent for his lumbar spine and five per cent for his thoracic spine) together with hospital and medical expenses of “$4,640.60 plus ongoing medical expenses as required”.
Though certain medical histories recorded that Mr Jaffarie ceased work at the time of his injury, the accepted evidence was that he continued his normal duties until, due to a downturn in work, he and six other workers were retrenched on 19 June 2009. After ceasing work, Mr Jaffarie operated a fruit shop from 19 November 2010 until either 18 September 2012 or 19 June 2013 (the evidence on this point is in conflict). Inconsistent with this, several medical histories recorded that Mr Jaffarie had done no work since ceasing work with the respondent.
On 19 June 2013, Mr Jaffarie’s visa was cancelled and he was taken to the Villawood Immigration Detention Centre (the Detention Centre), where he remains pending legal proceedings relating to the status of his visa.
Though the respondent’s insurer initially accepted provisional liability, and paid voluntary weekly compensation up to September 2009, it put the following matters in issue at the arbitration:
(a) whether Mr Jaffarie injured his back;
(b) if he did injure his back, whether he had recovered from that injury;
(c) whether Mr Jaffarie suffered any permanent impairment, and
(d) whether he gave notice of injury as required by the legislation.
Though not expressly stated by the Arbitrator to be in issue, it followed from the above matters, and the s 74 notice, that the respondent also disputed Mr Jaffarie’s entitlement to hospital and medical expenses. The Arbitrator said that the critical issue in the matter was “whether [Mr Jaffarie] injured his thoracic spine at all and if he did injure his lumbar spine, the position and the pathology of the injury to the lumbar spine” (T2.34 – 14 February 2014) (unless otherwise stated, all references to the transcript in this decision are to the transcript of 14 February 2014).
In a detailed oral decision delivered on 14 February 2014, the Arbitrator said that counsel for the respondent, Mr Beauchamp:
(a) analysed Mr Jaffarie’s tax returns, which he used as “the basis of a serious attack on [Mr Jaffarie’s] credit” (T23.23);
(b) submitted that Mr Jaffarie was a “person who was willing to deceive doctors in relation to defining his employment and would either lie or manufacture evidence in relation to some of the comments he had made” (T28.22) (this submission was directed to the false medical history that Mr Jaffarie had worked for a week after his injury without pay), and
(c) submitted that Mr Jaffarie kept on working for a period of seven days (after the injury), did not see any doctors, made no complaints except for a short complaint to a person identified as “Abs” (agreed to be a co-worker named Nooapaa George), and then, once he was retrenched, went on numerous visits to various doctors, including attending the hospital emergency surgery some three or four days after he was retrenched, which suggested a “manufacture of symptoms by [Mr Jaffarie]” (T34.16).
The Arbitrator largely accepted the above submissions and said that he had “a great disquiet in accepting a great deal of what [Mr Jaffarie] says, unless it is corroborated by other evidence” (T29.10). While the Arbitrator accepted that Mr Jaffarie suffered an injury to his lumbar spine, he found that that injury was only a strain and that Mr Jaffarie recovered from the effects of that strain by January 2010. He did not accept that Mr Jaffarie injured his thoracic spine. The 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”.
As the Arbitrator found that the effects of the lumbar spine injury had ceased, he declined to refer the assessment of whole person impairment for the lumbar spine to an AMS (Peric v Chul Lee Hyuang Ho Shin Jong Lee & Mr Iannazzo Ran t/as Pure and Delicious Healthy [2009] NSWWCCPD 47 (Peric)).
The Commission issued a Certificate of Determination on 17 February 2014 in the following terms:
“In this matter a Conciliation and Arbitration conference was held on 12 and 14 February 2014. Ex tempore reasons were given on 14 February 2014 when I made the following findings and orders:
1.I find that the Applicant did not sustain injury as defined in the 1987 Act to either the thoracic or L1/2 regions;
2.I find that the Applicant sustained an injury on 12 June 2009 to the low lumbar region in the form of a strain;
3.I find that the effects of any injury to the lumbar spine ceased by 19 January 2010;
4.The Respondent is to pay the Applicant weekly compensation at the following rates and for the following periods:
(a) 4.9.09 – 29.9.09 pursuant to the former s. 36 of the 1987 Act at the rate of $682.53 per week with credit for payments made by the Respondent during this period;
(b) 30.9.09 – 18.1.10 pursuant to the former s.40 of the 1987 Act at the rate of $300 per week;
5.Respondent to pay the Applicant’s s. 60 expenses up until 18 January 2010;
6.Awards in favour of the Respondent:
(a)In respect of the claim for weekly compensation after 18 January 2010;
(b)In respect of the claim for section 60 expenses after 18 January 2010; and
(c)In respect of the claim pursuant to ss. 66 and 67 of the 198 [sic, 1987] Act.
7.Respondent to pay the Applicant’s costs as agreed or assessed. I declare that the matter is complex for the purposes of costs of both parties and order an uplift of 20%. Reasons for the order were recorded in the ex tempore decision.”
On 16 May 2014, the solicitors who had acted for Mr Jaffarie at the arbitration, Veritas Legal, wrote to the Commission seeking a copy of the Arbitrator’s written statement of reasons.
Mr Jaffarie wrote to the Commission on 26 May 2014 (presumably having terminated the retainer of Veritas Legal) attaching what purported to be a transcript of the Arbitrator’s reasons. He said, among other things, that the decision did not contain any reasons why he “didn’t suffer from any WPI [whole person impairment] when he [the Arbitrator] held I hurt my back at work” and that that was an error of law and contrary to procedural fairness.
Mr Jaffarie made the point that the Arbitrator found in his favour regarding the cause of his back injury, yet made an award in favour of the respondent regarding his level of impairment. He said that the Arbitrator had no power to “take up the role of an AMS [Approved Medical Specialist] and determine a MAC [Medical Assessment Certificate]”, noting that “Haroun was confirmed in Zanardo vs Tolevski in 2013 again by a court of appeal”. (The reference to Haroun was a reference to Haroun v Rail Corporation New South Wales [2008] NSWCA 192; 7 DDCR 139 (Haroun) and the reference to Zanardo vs Tolevski was to Zanardo & Rodrigues Sales & Services Pty Ltd v Tolevski [2013] NSWCA 449 (Tolevski)).
Mr Jaffarie requested “an appeal or reconsideration of the decision” under s 352 or s 350 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). With respect to the delay since the decision, Mr Jaffarie said that his “solicitor refused to appeal after delaying it for more than 2 months while I am in [the] detention centre at Villawood”.
Mr Jaffarie said that he only managed to get the transcript last week and “the transcribed [sic] and the orders do not match up”. The letter also attached two additional reports from Dr Vijay Maniam, his treating orthopaedic surgeon, commenting on Mr Jaffarie’s whole person impairment. Mr Jaffarie requested that the Arbitrator’s decision be reviewed “either by the Registrar or by an other [sic] Arbitrator or by the president of the workers compensation Commission”.
The Commission dealt with Mr Jaffarie’s letter as an application for reconsideration under s 350(3) of the 1998 Act and referred the matter to the Arbitrator for that purpose.
On 29 May 2014, the Arbitrator prepared reasons for refusing Mr Jaffarie’s reconsideration application. On the same day, the Commission forwarded to Veritas Legal a transcript of the decision of 14 February 2014.
On 2 June 2014, the respondent’s solicitors filed submissions in opposition to the reconsideration application. They submitted that, given the Arbitrator’s factual findings, and noting the decision in Peric, the Arbitrator’s orders were correct.
The Arbitrator’s reasons for refusing the reconsideration application were amended on 10 June 2014 and the Commission issued a Certificate of Determination on that date in the following terms:
“The Commission determines:
1. The Application by the Applicant to reconsider this matter made under s. 350(3) of the Workplace Injury Managementand Workers Compensation Act 1998 is refused.
2. No order for costs of the application for reconsideration.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
The Arbitrator refused the reconsideration application, apparently without having seen the respondent’s submissions, because he considered himself bound by Greater Taree City Council v Moore [2010] NSWWCCPD 49 at [98]–[103] (Moore), which discussed and applied Peric, WorkCover New South Wales v Evans [2009] NSWWCCPD 95 (Evans) and Total Steel of Australia Pty Limited v Waretini [2007] NSWWCCPD 33 (Waretini). He noted Haroun and said that, given his finding that the effect of Mr Jaffarie’s injury to his lumbar spine had ceased, there was no medical dispute for referral to an AMS.
At some time not disclosed in the evidence, Mr Jaffarie instructed new solicitors, Buttar, Caldwell & Co (Buttar Caldwell), who received Mr Jaffarie’s file from his former solicitors on 19 June 2014.
On 8 July 2014, Buttar Caldwell filed with the Commission two appeals (A1 and A2). One (A2), filed outside the 28 days allowed in s 352(4) for an appeal to be filed in time, against the decision of 17 February 2014, and another (A1), filed in time, against the reconsideration decision dated 10 June 2014. Save that the appeal against the decision of 17 February 2014 contains submissions on why time to appeal should be extended, the substantive submissions in support of both appeals are identical. It is therefore appropriate to deal with the appeals together.
Each appeal has sought to file the same fresh evidence or additional evidence, namely:
(a) a further statement from Mr Jaffarie, dated 1 July 2014;
(b) lay witness statements from Said Agha Jafari, Sayed Murtaza Karimi and Said Ali Afari, which deal with Mr Jaffarie’s activities in the fruit shop;
(c) medical reports from Dr Maniam dated 28 February 2014, 5 May 2014 and 17 June 2014, and
(d) Business Activity Statements relating to the fruit shop for the periods 1 July 2011 to 30 September 2011, 1 October 2011 to 31 December 2011, 1 January 2012 to 31 March 2012 and 1 April 2012 to 30 June 2012.
Neither appeal properly identified the grounds of appeal. Instead, each alleged that the Arbitrator’s respective decisions were affected by “an error of fact, law or discretion pursuant to section 352(5) of the 1998 Act”. They then set out submissions, signed and “approved” by Mr Jim Jobson, barrister, but prepared by Mr Pervaiz Buttar, solicitor, under the following headings: proposed medical treatment, lump sum compensation, work injury damages threshold, the Arbitrator’s finding of fact and relevant/irrelevant considerations, material error, bias and specific grounds relating to an appeal against the Arbitrator’s decision of 10 June 2014.
On 3 September 2014, the respondent’s solicitors filed submissions in response to each appeal. Counsel who prepared those submissions, Mr Malouf, contended that the submissions filed on behalf of Mr Jaffarie did not comply with Practice Direction No 6 and that it was difficult to formulate submissions in reply. Nevertheless, Mr Malouf made detailed submissions on what he thought the issues were.
Mr Malouf’s submission that the appeals did not comply with Practice Direction No 6 was correct. The profession is reminded, yet again, that appeals must comply with the Practice Direction. The non-compliance with the Practice Direction in the present matter has made it difficult to identify the grounds of appeal and, as the procedural history set out below demonstrates, has unnecessarily protracted the appeal process. That was most unsatisfactory.
On 15 September 2014, the President allocated the appeals to me. On reading the appeals, it was apparent that they were deficient in the following general respects:
(a) in breach of Practice Direction No 6, the submissions did not properly identify the grounds of appeal, but merely made general complaints under several broad headings;
(b) the submissions in support of the application to extend time to appeal were unsatisfactory in that they did not properly deal with why the appeal was not filed within time. They referred to several letters and emails that were not in evidence and failed to address the issues in Gallo v Dawson [1990] HCA 30; 93 ALR 479; 64 ALJR 458 (Gallo), and
(c) the submissions in support of the application to rely on fresh evidence did so by reference to Haider v JP Morgan Holdings Aust t/as JP Morgan Operations Australia Ltd [2007] NSWCA 158; 4 DDCR 634 (Haider), a decision which considered the fresh evidence provision prior to the amendment of s 352 in the Workers Compensation Legislation Amendment Act 2010, which applies to all appeals from Arbitrators’ decisions made on or after 1 February 2011. The submissions did not refer to the current provisions relating to fresh evidence.
In view of the above issues, on 16 September 2014 I instructed my research associate, acting as delegate of the Registrar, to contact the parties to arrange a teleconference with a view to hearing submissions on why the appeals should not be struck out for non-compliance with Practice Direction No 6.
On 16 September 2014, Gerard McAleese, paralegal with Buttar Caldwell, wrote to the Commission stating that he was “puzzled as to why the respondent deems it [Practice Direction No 6] has not been complied with”. He noted that an amended chronology had been filed, as directed by the Commission, and that it was not for the Registrar to arrange a teleconference to decide the preliminary question of whether or not Practice Direction No 6 had been complied with. He submitted that the appeals complied with the Practice Direction and should be “properly considered according to the substantial merits of the case” without regard to technicalities or legal forms (s 354(3) of the 1998 Act). Mr McAleese forwarded a copy of this letter to Mr Jaffarie and the respondent’s solicitors.
After several telephone calls and emails, Buttar Caldwell advised the Commission by email on 17 September 2014 that Mr Jaffarie had terminated their retainer. Attached to their email was a note from Mr Jaffarie that said he had read the two appeals filed by his solicitors, the 36-page reply by the respondent, and the email from Mr McAleese of 16 September 2014. Mr Jaffarie said, among other things, that he did not want his solicitors to “work more” in his matter and that he wanted to conduct the appeals himself “removing [his] legal advisers from any further obligation”. He wanted to arrange the appeals himself or, alternatively, have the appeals decided on “the grounds already before the Commission”.
By email dated 22 September 2014, the Commission advised Mr Jaffarie that the appeal papers filed by his former solicitors did not comply with Practice Direction No 6 and were deficient in several other respects. It urged Mr Jaffarie to obtain legal representation as soon as possible.
With the assistance of the Registrar, and acting under the Commission’s Access and Equity Service Charter, Mr Jaffarie retained Mr Paul Stockley, barrister, to act for him in the appeals.
At a teleconference on 10 October 2014, at which Mr Stockley represented Mr Jaffarie and Mr Malouf represented the respondent, I directed that the appeals were to start again and set a timetable for the filing of fresh submissions. In addition, I listed the appeals for oral hearing on 2 December 2014. However, the appeals originally filed by Mr Buttar were not struck out.
Mr Stockley filed submissions on 31 October 2014. This document sought an extension of time to appeal, relied on only two documents as fresh evidence or additional evidence on appeal (Mr Jaffarie’s letter of 26 May 2014 and his further statement of 1 July 2014) and identified one ground of appeal, namely, that the Arbitrator erred in law when, having found injury to Mr Jaffarie’s lumbar spine, he made an award in favour of the respondent pursuant to ss 66 and 67 of the Workers Compensation Act 1987 (the 1987 Act) when he had no jurisdiction to determine that issue (Bindah v Carter Holt Harvey Wood Products Australia Pty Ltd [2014] NSWCA 264 (Bindah)). Mr Stockley sought an order that the matter be remitted to the Registrar for referral to an AMS for assessment of Mr Jaffarie’s whole person impairment (as a result of the injury to) the lumbar spine.
On 13 November 2014, the respondent filed submissions in reply.
On 19 November 2014, Mr Stockley advised that he was no longer acting for Mr Jaffarie, his instructions having been withdrawn.
After several emails and telephone conversations between the Registrar and Mr Jaffarie, the Registrar wrote to Mr Jaffarie on 20 November 2014 confirming that: Mr Jaffarie was unable to get legal representation, that he did not wish to delay the proceedings further to attempt to get legal representation, that he did not wish to make oral submissions on 2 December 2014, and that he wanted the appeals determined on all the papers filed to date (including those filed by Mr Stockley) without an oral hearing. Mr Jaffarie confirmed these matters in an email to the Registrar late on 20 November 2014.
Having been informed of the above matters, the respondent’s solicitor advised in writing on 21 November 2014 that it consented to the hearing date being vacated but did not consent to the appeals being determined on all the documents filed by Buttar Caldwell and Mr Stockley. In response to a direction that it file submissions on why the appeal could not be determined on all the papers filed to date, the respondent’s solicitor advised by email on 25 November 2014 that “no specific orders have been made striking out the earlier appeal[s] so it is appropriate that all appeals be determined”. I have interpreted this as a concession that the appeal can be determined on all the papers filed to date without the need for an oral hearing, though I note that, initially, Mr Malouf submitted that an oral hearing was required.
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions (ultimately made) by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any (further) conference or formal hearing and that this is the appropriate course in the circumstances.
I am satisfied that the Commission has complied with the provisions of its Access and Equity Service Charter and has fully explained to Mr Jaffarie his options for obtaining legal assistance. He has elected to proceed in the manner explained above.
ISSUES IN DISPUTE
As previously noted, the appeals, as originally filed, do not comply with Practice Direction No 6 in that they have not identified the grounds of appeal. Instead, they listed several broad headings. Though I have rearranged the order of those headings, so they at least follow more logically, the headings are:
(a) proposed medical treatment;
(b) lump sum compensation;
(c) specific grounds relating to the appeal against the decision of 10 June 2014;
(d) work injury damages;
(e) the Arbitrator’s finding of fact and relevant/irrelevant considerations;
(f) bias, and
(g) material error.
Presenting the appeals in this way was completely unacceptable and showed total disregard for the Commission’s procedures. In the submissions filed by Mr Stockley, the only ground of appeal pressed was that identified at [38] above, which essentially covers the headings I have listed as (b) and (c) above. I intend to consider all issues raised in the parties’ submissions, noting that each side has had every opportunity to deal with them.
In addition to the above matters, the following preliminary issues also arise: first, whether time to appeal the decision of 17 February 2014 should be extended and, second, whether Mr Jaffarie should be given leave to tender fresh evidence or additional evidence on appeal. It is convenient to deal with these matters first.
EXTENSION OF TIME TO APPEAL
Background
Appeals to a Presidential member under s 352 of the 1998 Act must be made within 28 days of the decision appealed (s 352(4)). As time runs from the day after the date of the Certificate of Determination, the last day on which Mr Jaffarie could have appealed in time was 17 March 2014. Mr Jaffarie’s appeal against the Arbitrator’s decision of 17 February 2014, which was filed on 8 July 2014, was therefore filed nearly four months out of time. However, the appeal against the reconsideration decision, issued on 10 June 2014, which was also filed on 8 July 2014, was filed within time.
In support of the application to extend time to appeal, Mr Buttar relied on a statement from Mr Jaffarie dated 1 July 2014. This statement deals with the circumstances of the injury on 12 June 2009, the obtaining and tendering of medical evidence at the arbitration, the negotiations at the arbitration, and the circumstances relating to the filing of the appeal out of time.
As far as the application to extend time is concerned, I intend to have regard to those parts of this statement that purport to deal with why the appeal is out of time, which relate to matters that occurred after the Arbitrator’s decision and were clearly not available before the arbitration. In the circumstances, it is in the interests of justice that I consider them on the application to extend time to appeal. Those parts are contained in paragraphs 23 to 28 where Mr Jaffarie said:
“23) On 14 February [2014] she [Mr Jaffarie’s former solicitor, Ms Kristen Abi-Khattar] called me and said that the Arbitrator has given everything against us and when I spoke to the Director Ramy Qutami [a solicitor with Veritas Legal] himself he said that there definitely was an error in the judgement [sic] and he said he will advise me after he gets [a] barrister’s advice. After that Ramy Qutami never talked to me and when I used to call his office they said to say that Ramy Qutami is very busy and sometimes they used to say that he is in conference and can’t talk to me.
24) After that they never emailed me anything except a long letter that they can’t appeal and when I told them that I will get all the proof needed for the appeal from my accountant and friends working with me in my shop but Ms Khatter [sic] said she doesn’t need any other proof or report after the conference.
25) On 13 March [2014] they sent a letter to my home address where I don’t live anymore nor my wife live there because after I have been detained my wife has moved with her parents. I didn’t know about that letter and on 17 March 2014 I called their office and Ms Khattar [sic] said they can’t appeal and the time for appeal was also passed.
26) I was so hurt that I said I wanted to go to Media and asked them to give my files first. They said they can’t give my files but after they called me and asked me to send someone to take the copy of my files. On 25 March [2014] my friend Said Agha Jafai went to their office and collected the copy of my files and they gave a CD with that file. I never told them I don’t want their service anymore.
27) After that my wife asked me not to go to the media because it’s [sic] a bad name [sic] and my Afghan community will think and take it something bad so I didn’t go to media but I asked my solicitor to do the reconsideration for me because it was not a fair decision but they refused to do so.
28) After many correspondence [sic] I came to know that the CD they gave to my friend with my files on 25 March [2014] it was from WCC and reason was [sic] written on that so I managed to transcript [sic] it by one of the detainee [sic] in here and got it [sic] that all the judgment has been done is on [the] wrong basis.”
Submissions
I have read and considered all of the submissions filed by Mr Buttar in support of the application to extend time. In support of the application to extend time to appeal, Mr Buttar submitted:
(a) Mr Jaffarie has been in detention at the Villawood Immigration Detention Centre since June 2013 and remains there at present;
(b) Mr Jaffarie was not provided with the transcript of the Arbitrator’s decision until “about 29 May 2014”;
(c) though Mr Jaffarie’s former solicitors informed him of the adverse findings against him, he was unable to decide whether to appeal until 29 May 2014;
(d) prior to the arrival of the transcript (of the decision), his former solicitors “refused to consider an appeal of the decision despite [Mr Jaffarie’s] several written requests to do so”;
(e) Mr Jaffarie had to wait for Dr Maniam’s reports of 28 February 2014 and 5 May 2014 (which he had requested his solicitors to obtain prior to the completion of the hearing) to “ascertain whether or not he should appeal or [sic] the decision of the Arbitrator or apply for a reconsideration of the decision, despite not having the reasons for the Arbitrator’s decision at that time”;
(f) the restriction of Mr Jaffarie’s freedom at the Detention Centre prevented him from seeking alternative legal representation regarding his workers compensation claim or the transcript of the decision and he “submitted a request to the WCC for guidance of his own accord”;
(g) Mr Jaffarie was not properly guided by his previous solicitors about his prospects of success on appeal and/or reconsideration, “which led to his missing the deadline for appeal whilst in detention”;
(h) the Arbitrator’s decision was delivered extempore, which itself was exceptional, despite being aware that Mr Jaffarie is not a sophisticated person, was in detention and could not obtain the reasons to seek further advice in a complex matter. This was a breach of procedural fairness;
(i) on 26 May 2014, Mr Jaffarie sought guidance from the Commission as to whether he should file an appeal or a reconsideration. No guidance was provided and the Arbitrator interpreted Mr Jaffarie’s request as an application for reconsideration and proceeded to determine it. The Arbitrator appears to have determined the matter in haste, without taking note of the questions posed in the application and without considering the additional medical evidence (from Dr Maniam);
(j) Buttar Caldwell received Mr Jaffarie’s file from his former solicitors on 19 June 2014, and
(k) the question of delay was before the Arbitrator on 10 June 2014 and the reasons for the delay were accepted by him. This acceptance by the Arbitrator goes towards establishing exceptional circumstances.
Mr Malouf provided extensive written submissions on why the application to extend time to appeal should not be granted. I have read and considered all of his submissions, including his submissions filed on 13 November 2014. His main points may be summarised as follows:
(a) Mr Jaffarie has failed to show how his detention at Villawood has affected his case. He was detained at the time of his arbitration and that did not impede his previous solicitors. He did not have great difficulty liaising with solicitors during his detention;
(b) Mr Jaffarie’s friend obtained the file from Veritas Legal on 25 March 2014. That file included the CD of the Arbitrator’s oral decision, which Mr Jaffarie had transcribed, at some stage. Contrary to Mr Buttar’s submission, it is unlikely that Mr Jaffarie was unaware of the decision prior to 29 May 2014. Mr Jaffarie must have at least heard the reasons or read the independent transcription prior to 29 May 2014. The issues of Mr Jaffarie’s credit become very real in these circumstances;
(c) Mr Jaffarie’s assertion that he was told on 14 February 2014 that “the Arbitrator has given everything against us” should not be accepted in circumstances where there were findings in Mr Jaffarie’s favour;
(d) Mr Jaffarie sent his application for a reconsideration on 26 May 2014 and had certain views as to the accuracy of the decision before 29 May 2014;
(e) there is no evidence that Mr Jaffarie wrote to his previous solicitors requesting an appeal;
(f) there is no evidence that Mr Jaffarie’s detention at Villawood prevented him from obtaining alternative legal representation;
(g) the assertion that Mr Jaffarie was not properly guided by his previous solicitors about his prospects of success regarding an appeal is difficult when Mr Jaffarie said that he was emailed a long email about the appeal and received a phone call about it;
(h) if Mr Jaffarie was aware of the right to request a reconsideration, he was aware of the ability to appeal. He was informed of at least the existence of an appeal process by his previous solicitor;
(i) exceptional circumstances have not been established and there will be no demonstrable or substantial injustice if time to appeal is not extended, and
(j) Mr Jaffarie’s credit was a crucial factor at the arbitration and the Commission should approach his evidence in the application to extend time, which has not been tested, “with caution”.
Discussion and findings
An extension of time in which to appeal is governed by Pt 16 r 16.2(12) of the Rules, which provides:
“(12) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
McHugh J considered the question of extending time to appeal in Gallo at 480. His Honour observed that, in order to determine whether the strict application of time limits will work an injustice, it is necessary to have regard to:
(a) the history of the proceedings;
(b) the conduct of the parties;
(c) the nature of the litigation;
(d) the consequences for the parties of the grant or refusal of the application for the extension of time;
(e) the prospects of the applicant succeeding in the appeal, and
(f) upon expiry of the time for appealing, the respondent has a vested right to retain the judgment unless the application for extension of time is granted.
Considering Pt 16 r 16.2(11) of the Commission’s 2006 Rules, which was in the same terms as Pt 16 r 16.2(12) of the current provision, Allsop P (as his Honour then was) in Bryce v Department of Corrective Services [2009] NSWCA 188 (Beazley JA (as her Honour then was) and Giles JA agreeing) said, at [10]:
“Whether or not there are exceptional circumstances and whether in those circumstances it is shown to the satisfaction of the Deputy President that demonstrable or substantial injustice would occur if leave were not granted is a composite expression in the rule to be dealt with within jurisdiction.”
Mr Jaffarie was in detention when the Arbitrator delivered his decision on 14 February 2014. Though his solicitor informed him of the outcome on the day (presumably by telephone), and he spoke to Mr Qutami, a partner with Veritas Legal, and was aware of the outcome, he was clearly not in a position to give instructions to appeal until he received proper advice.
Exactly when Mr Jaffarie received advice in relation to an appeal, and the content of that advice, is not known. According to Mr Jaffarie, Veritas Legal advised against an appeal. The role that advice played in the appeal being filed out of time is not known. However, it is reasonably clear that, from an early stage after the decision was delivered, Mr Jaffarie wished to appeal.
Whether Mr Jaffarie was ever advised of the 28–day time limit in which to appeal is not known. On his evidence, Ms Abi-Khattar told him on 17 March 2014 that the time to appeal had passed. I infer that it was shortly after receiving that advice that Mr Jaffarie decided to retrieve his file from Veritas Legal and instruct other solicitors, though, like many things in this application to extend time, that is far from clear.
What happened between 17 March 2014, when Mr Jaffarie was told that the time to appeal had passed, and 26 May 2014, when he wrote to the Commission seeking either an appeal or reconsideration, has not been explained. I infer that Mr Jaffarie took steps to have the audio recording of the Arbitrator’s decision transcribed and to find new solicitors. Though Buttar Caldwell did not receive the files from Veritas Legal until 19 June 2014, it is not known when Mr Jaffarie first retained them.
The submission that Mr Jaffarie had to wait for the receipt of Dr Maniam’s reports before deciding whether to appeal is unsustainable. Section 352 appeals are restricted to the identification of any error of fact, law or discretion by an Arbitrator. They are not a rehearing. It is not a proper ground for an extension of time to submit that the prospective appellant is awaiting the receipt of further evidence that could and should have been tendered at the arbitration.
The submission that Mr Jaffarie was not properly guided by his previous solicitors about his prospects of success on appeal and/or reconsideration, and that that led to him missing the deadline to appeal, has not been properly explained in the evidence.
The fact that the Arbitrator delivered his decision orally (not extempore, as has been submitted) involved no breach of the rules of procedural fairness and the submission that it did was simply nonsense. Though he was not present when the Arbitrator gave his decision, Ms Abi-Khattar, a solicitor with Veritas Legal, was present and she advised Mr Jaffarie of the result on the day it was delivered.
The submission that Mr Jaffarie sought advice from the Commission on 26 May 2014 and that no advice was provided was misguided and has no relevance to why the appeal was filed out of time. By 26 May 2014, any proposed appeal was already two months out of time.
The submission that the question of delay was “before” the Arbitrator on 10 June 2014 was also misguided. The Arbitrator dealt with delay in the context of the reconsideration application, which has no statutory time limit. His decision has no relevance to the delay in filing the s 352 appeal within time. However, the fact that Mr Jaffarie sought a reconsideration partly explains why the appeal is out of time by several months, though it does not explain how it became out of time in the first place.
As the above analysis demonstrates, the evidence and submissions in support of the application to extend time to appeal are far from satisfactory, and would not be a model to be followed in matters of this kind in the future. However, there are several reasons why, on balance, I believe time to appeal should be extended in the exceptional circumstances of this case. This is so notwithstanding the largely misguided submissions made by Mr Buttar in support of the application. My reasons are set out below.
First, while, as noted above, the evidence in support of the application to extend time is less than ideal, it is clear that Mr Jaffarie has been in detention since 17 June 2013. I accept that, in Mr Jaffarie’s circumstances, it would have been difficult for him to obtain legal representation in a proposed workers compensation appeal, though he may well have had access to legal advice about his immigration status.
Second, I infer, based on Mr Jaffarie’s evidence that Veritas Legal wrote to him saying that “they can’t appeal”, that Veritas Legal advised against an appeal and this is why Mr Jaffarie did not appeal in time. The advice from Veritas Legal touches on the prospects of success on appeal, discussed below.
Third, while I accept that Mr Jaffarie would have been aware of the general reasons for the decision well before 29 May 2014, what is more important is when he became aware of his right to appeal. There is no proper evidence on this important issue. However, I infer that, through no fault of his own, Mr Jaffarie was not aware of his right to appeal until 17 March 2014, the last day on which the appeal could be filed in time.
Fourth, when Mr Jaffarie received the audio recording of the decision is of little relevance. On the evidence, he did not receive it until after his friend picked up the file on 25 March 2014. By that time, any appeal was already out of time.
Fifth, Mr Jaffarie’s evidence that he was told on 14 February 2014 that the Arbitrator had “given everything against us” is of limited relevance to the extension of time application. The relevant issue is when Mr Jaffarie became aware of his right to appeal and why he did not exercise that right in time. I accept he did not become aware of that right until he received advice from Ms Abi-Khattar on 17 March 2014. It is tolerably clear that Veritas Legal were not prepared to act in any appeal and, as he was in detention, it would have been extremely difficult for Mr Jaffarie to file an appeal on that day.
Sixth, while there is no evidence that Mr Jaffarie wrote to Veritas Legal requesting an appeal, the evidence is clear that, after the Arbitrator delivered his oral decision on 14 February 2014, Mr Jaffarie attempted to speak to Mr Qutami about the decision and, I infer, about any possible appeal, but was unable to do so because Mr Qutami would not take his calls.
Seventh, the respondent has pointed to no prejudice it will suffer if time to appeal is extended.
Last, on the prospects of success, which are relevant to whether the refusal to extend time to appeal will result in a demonstrable or substantial injustice, the proposed appeal raises at least one issue of general importance to claims for lump sum compensation. That is, what is the effect of Haroun and, whether, in light of it and other more recent decisions by the Court of Appeal (Bindah), the Arbitrator’s approach to such claims was correct. Based on Bindah, it is strongly arguable that the Commission’s previous approach to such matters has been incorrect and this issue should be determined.
The appeal also raises (not as a ground of appeal but buried in the body of the submissions) an allegation that the Arbitrator failed to consider relevant evidence in Mr Jaffarie’s tax returns dealing with wages Mr Jaffarie said he paid to workers who did work in the fruit shop that he said he could not do because of his injury. Prima facie, this allegation has merit and appears to have affected the Arbitrator’s finding that the effect of the injury to the lumbar spine ceased by January 2010.
For reasons explained below, the other “grounds” of appeal are without merit and, in several instances, are completely misguided. However, if time to appeal is extended, it is extended for all purposes.
Conclusion – extension of time to appeal
For these reasons, but not without considerable reluctance, in view of the unsatisfactory evidence and submissions in support of the application, I extend time to appeal until 8 July 2014.
FRESH EVIDENCE
To understand the application to rely on fresh evidence it is first necessary to consider the evidence before the Arbitrator and his reasons.
Evidence and the Arbitrator’s reasons
On the question of whether Mr Jaffarie suffered any injury, the Arbitrator said the issue was whether Mr Jaffarie injured his thoracic spine at all and, if he injured his lumbar spine, the “position and pathology of the injury to the lumbar spine” (T3.2).
Mr Jaffarie’s case was that he reported that he had injured his back to a man he knew as “Abs”. It was agreed at the arbitration that Abs is Nooapaa George, a co-worker employed by the respondent. Mr George gave evidence that Mr Jaffarie had complained to him of having a sore back on 12 June 2009 but did not tell him “how he did it”. Mr George told Mr Jaffarie to tell a supervisor. Mr Jaffarie has not suggested that he did so.
Mr Jaffarie continued to work until, along with six other workers, he was retrenched on 19 June 2009 because of a downturn in work.
On the afternoon of 19 June 2009, Mr Jaffarie saw a general practitioner, Dr Mohammed Virk, a locum at Mr Jaffarie’s usual medical practice, complaining of back pain. Dr Virk’s notes for 19 June 2009 recorded that Mr Jaffarie attended because of:
“Pain – back – lumbo-sacral
Intermittent
One monthh/o heavy lifting at work”
On examination, Dr Virk noted tenderness and stiffness in the lower lumbar region, with flexion to the upper thighs. Other movements were recorded as “good range” and lower limbs were “ok”. An x-ray of the lumbosacral spine on 19 June 2009 revealed minor spina bifida of the S1 segment, some previous trauma on the left side of the S1 segment, narrowing of the L5/S1 disc space and small Schmorl’s nodes at L1, L3 and L4.
On 20 June 2009, Mr Jaffarie saw a different general practitioner, Dr Islam, but at the same practice as before. Dr Islam referred Mr Jaffarie to the Auburn Hospital Emergency Department for further assessment. The referral letter said that Mr Jaffarie had pain for a “couple of days, on x-ray ? fracture L4 spine for assessment and further management” (emphasis included in original).
In his notes for 20 June 2009, Dr Islam recorded Mr Jaffarie to have lumbosacral back pain with a “history of lifting at work”, but with “nil radiation of pain”. Mr Jaffarie had a good range of movement.
On 22 June 2009, Dr Islam recorded that Mr Jaffarie still had “backache” and was tender over the lower lumbar region.
On 23 June 2009, Dr Islam recorded that Mr Jaffarie had been to Auburn Hospital and “return [sic] as muscular strain”.
On 25 June 2009, Dr Islam recorded:
“BACK PAIN
Work involves heavy lifting
machine cleaning
acc [sic] to patient has had pain since after work on 12th June
got worse
continued until 18th Junenow on [sic] pain
nil pain radiation
nil swelling
point tenderness on lumbar spines and paraspinal muscles
movements mild restrictions on extension”Dr Islam issued Mr Jaffarie with a WorkCover certificate on 25 June 2009, which diagnosed “back injury” due to heavy lifting and cleaning at work.
On 26 June 2009, Mr Jaffarie completed a claim form, which referred to pain in his “back and left leg”, noting the injury occurred at about 11 am on 12 June 2009 and that Mr Jaffarie told “Aps” (presumably this was the person referred to in the evidence as “Abs”).
On 29 June 2009, Mr Jaffarie had a CT scan, which revealed minor bulging from L2 to L5 with no significant impingement. At L5/S1 there was no significant disc protrusion identified and the foramina were patent. The conclusion was of minor disc bulging at all levels with no significant impingement upon the theca. The radiologist, Dr Johnson, did not record a history of left leg pain.
To the extent that Mr Jaffarie said that he had left leg pain from 12 June 2009, the Arbitrator found that that complaint was inconsistent with the general practitioners’ “fairly comprehensive clinical notes undertaken in respect of various attendances from 19 June 2009 until 30 June 2009” (T14.14).
On 11 July 2009, Mr Jaffarie saw Dr Maniam. In his report of 12 August 2009, Dr Maniam recorded that Mr Jaffarie experienced sudden pain in his lumbar spine when he lifted a mould on 12 June 2009. Mr Jaffarie was “unable to continue”, reported the incident, and consulted Dr Selim (Dr Selim is Mr Jaffarie’s usual general practitioner, but at the same practice as Dr Islam). He diagnosed Mr Jaffarie to be suffering from an acute strain. He sent him for physiotherapy and said he was optimistic that the problem would resolve in time. Dr Maniam took no history of Mr Jaffarie suffering from any leg pain, but straight leg raising was only to 30 degrees bilaterally. Neurological signs were intact. (It should be noted that Dr Maniam had access to the CT scan of 29 June 2009.)
The Arbitrator said that Dr Maniam’s history, as recorded in his report of 12 August 2009, that Mr Jaffarie was unable to continue working after 12 June 2009 and went to consult his general practitioner, was “misleading and grossly exaggerate[d]”, or, as Mr Beauchamp put it, “manufactured the nature of [Mr Jaffarie’s] problems” (T16.1). That was because Mr Jaffarie continued to work, including doing overtime, for at least a week after 12 June 2009 and did not see his general practitioner until 19 June 2009.
The Arbitrator added, at T16.3:
“Whilst there is some portion of the truth in what [Mr Jaffarie] says, it is this type of comment that Dr Maniam records that cause me to have serious concerns about accepting a great deal of [Mr Jaffarie’s] evidence.”
The Arbitrator also noted the absence of left leg pain in the report prepared by Dr Selim on 22 July 2009.
On 17 August 2009, Dr Breit, orthopaedic surgeon, examined Mr Jaffarie at the request of the respondent’s insurer. In his report of 18 August 2009, Dr Breit concluded that Mr Jaffarie’s claimed back pain was not consistent with the history. He conceded that Mr Jaffarie may have had an acute back strain, which lasted a short period, but he was fit for his pre-injury duties by August 2009, the effects of any injury having ceased by that time. He thought that Mr Jaffarie’s presentation was one of “marked maximisation and abnormal illness behaviour”.
On 13 October 2009, Mr Jaffarie had an MRI scan of his lumbar spine, on referral from Dr Maniam. The radiologist, Dr Ho, recorded the clinical history to be “[p]ain in lumbar spine extending into legs”. The scan showed irregularity and depression deformity of the T11 endplate as well as signal loss at L1/2. Dr Ho concluded that there was degenerative change at the T11-12 and L1-2 discs, and mild focal posterior bulging/protrusions of the discs had occurred.
The Arbitrator quoted the report of Dr Selim of 4 June 2012, which reads:
“To whom it may concern.
I have treated Mr Sayed Jaffarie, 4 Princes Street, GUILDFORD WEST following his back injury in June 2009. In the last eight to nine months his back pain has aggravated [sic] to involve his thoracic spine (mid to upper back). His treatment was always with painkillers and physiotherapy.”
Based on this evidence, the Arbitrator said that, in terms of “contemporaneity” (T20.4), for the four or five months after the injury, there were no complaints of pain to the thoracic spine. The Arbitrator added that Dr Selim’s report of 4 June 2012 made it clear that the pain in Mr Jaffarie’s thoracic spine did not come on until sometime in 2011.
For the above reasons, and because of the comprehensive clinical notes of the general practitioner/s, as well as the initial complaints to Dr Breit and Dr Maniam, the Arbitrator felt there was a clear basis for his view that there was “no suggestion that [Mr Jaffarie] sustained any injury to the levels of T11 or [the] L1 area in the subject accident” (T20.33). Accordingly, the Arbitrator made an award for the respondent in respect of any alleged injury to the thoracic spine.
In addition to the above reasons, the Arbitrator added that when Mr Jaffarie had a CT injection at L5-S1 on 28 September 2011, Dr Ho recorded that “15 minutes following the injection the patient experienced some relief of his low back pain” (T21.27). Thus, this provided, in the Arbitrator’s opinion, further evidence that Mr Jaffarie had not injured his thoracic spine. As previously noted, this finding has not been challenged on appeal. Significantly, the finding did not depend on the Arbitrator’s assessment of Mr Jaffarie’s credit, which is discussed later in these reasons.
Dealing with Mr Jaffarie’s post injury activities, the Arbitrator noted that Mr Jaffarie set up a fruit shop business on 19 November 2010 under the name of “Mashallah Fruit and Food Shop”. Mr Jaffarie’s evidence was that he intended to hire staff “to do the work” and that he would effectively supervise. In his November 2011 statement, Mr Jaffarie said that the shop was not going well, though in the first few months he made $300 per week after expenses.
After three months, however, another shop opened in the area and Mr Jaffarie said he was lucky to break even. Though his shop was open seven days per week, Mr Jaffarie said he probably attended no more than four times per week and for no more than two to three hours each time. He said that he would check on the staff and order whatever was needed to fill the shelves. He said his net earnings per week for the year ending 30 June 2011 were approximately $100 per week.
Mr Jaffarie said that he had not made a profit because of his high expenses, most of which were to engage staff to do most of the work that he would normally do himself. The workers were friends of his who had taken significantly reduced wages to assist him. They would attend the markets to collect the fruit, arrange the groceries and stock the shelves for him. He promised them that, if the business went well, they would share in the profits.
Referring to Mr Jaffarie’s 2011 and 2012 tax returns, which recorded his business income and expenses, the Arbitrator said that there was no reference in either return to the payment of wages, which was inconsistent with Mr Jaffarie’s evidence that he was paying staff. This led to the conclusion that the Arbitrator had to reject Mr Jaffarie’s evidence that he paid other people who did the work and his evidence that he was not doing the work (T25.28). This left the Arbitrator “in a great deal of disquiet in relation to [Mr Jaffarie’s] evidence” (T25.31).
The Arbitrator said that Mr Jaffarie ran his fruit shop from 19 November 2010 until 19 June 2013, when his visa was cancelled and he was placed in detention at Villawood. Based on the tax returns, and the nominal amounts paid to contractors, the Arbitrator found that Mr Jaffarie was in full or near full-time employment while he ran his fruit shop.
The Arbitrator added that the histories to a number of doctors during the period from 19 November 2010 to 19 June 2013 did not disclose that Mr Jaffarie was in paid employment. Those reports and histories included:
(a) the report from Ameena Iqbal, psychologist, dated 28 July 2011, which recorded that Mr Jaffarie had not been able to secure employment due to his injuries. The report made no reference to Mr Jaffarie running a business;
(b) the report from Mr Jaffarie’s psychiatrist, Dr Mohammed Alam, dated 14 January 2012, stated that Mr Jaffarie “currently does not work”. The Arbitrator did not accept the submission by Mr Jaffarie’s counsel that the quote was referring to Mr Jaffarie not working in his old job;
(c) the report from Dr Breit dated 20 August 2013 recorded that Mr Jaffarie had not worked “subsequently”, which the Arbitrator took to mean subsequent to Mr Jaffarie’s employment with the respondent, and
(d) the report from Dr Ellis, specialist qualified by Mr Jaffarie, dated 18 April 2011, which had a history that Mr Jaffarie had “been unable to work since” his injury on 12 June 2012 (Dr Ellis also had a history that Mr Jaffarie’s boss was unsympathetic and that Mr Jaffarie worked for another week without pay, a statement that the Arbitrator described as “simply wrong” (T28.27), as was Dr Maniam’s history of Mr Jaffarie “being unable to continue” (after the incident).
After noting Mr Beauchamp’s submission that Mr Jaffarie was a person who was willing to deceive doctors in relation to defining his employment and would either lie or manufacture evidence in relation to some of the comments he made, the Arbitrator said, at T28.31:
“While some doctors may make errors there is a consistent theme throughout the medical evidence from the psychologist, the psychiatrist, Dr Breit and Dr Walker that [Mr Jaffarie] did not do any work following the employment with the respondent. In my view this is a serious matter which weighs against [Mr Jaffarie’s] credit and causes me a great deal of disquiet. The tax returns do not show that [Mr Jaffarie] was paying wages when, in fact, he says he was. As Mr Beauchamp submitted, there was simply no corroborative evidence from these people as to whether they were working for [Mr Jaffarie]. It is these histories and one other matter that I will come to which causes me a great deal of disquiet in accepting a great deal of what the applicant says, unless it is corroborated by other evidence.”
The Arbitrator also noted Mr Jaffarie’s statement on 27 September 2013 that he remained totally incapacitated and that that “type of statement just flows directly contradictory to the work that [Mr Jaffarie] was doing in the fruit shop for some two to three years” (T29.17).
After referring to Dr Breit’s evidence that Mr Jaffarie’s presentation was one of “abnormal illness behaviour”, which the Arbitrator did not accept could be explained by wide cultural variations in patients from ethnic minorities, the Arbitrator said that the gross inconsistencies between Mr Jaffarie’s sworn evidence about paying people and the absence of that evidence in the tax returns led him to accept Dr Breit’s view over those of Dr Maniam and Dr Ellis because he had “great difficulty accepting a deal of what [Mr Jaffarie] says” (T31.4).
In light of Mr Jaffarie’s complaints of back pain being corroborated by Mr George, and the fact that Mr Jaffarie saw his doctors on a number of occasions (from 19 June 2009), the Arbitrator accepted that Mr Jaffarie suffered low back pain in the L4/5 region in the course of his employment with the respondent on 12 June 2009. However, the Arbitrator was not prepared to accept Mr Jaffarie “on his face that there was severe pain and in that regard it becomes very difficult as to what one would conclude from that” (T32.5).
The Arbitrator concluded, giving the benefit of the doubt to Mr Jaffarie, that Mr Jaffarie suffered a back strain which rendered him (totally) unfit until 29 September 2009 and partially unfit from then until Dr Breit’s second report on 17 or 18 January 2010. From that time, the Arbitrator was not satisfied that Mr Jaffarie had any ongoing problems with his back.
Noting that, in view of his conclusions on Mr Jaffarie’s credit, his awards may be viewed as generous to Mr Jaffarie, the Arbitrator said that he did not accept Mr Jaffarie’s evidence unless it was corroborated by other evidence “in terms of his ongoing problems relating to the back injury in 2010 [sic, 2009]” (T34.7). The Arbitrator found that Mr Jaffarie had fully recovered from the effects of any back injury.
Turning to the claim for lump sum compensation, the Arbitrator found that Mr Jaffarie did not injure his thoracic spine and that claim would not be referred for assessment by an AMS. With respect to the claim for lump sum compensation for the lumbar spine, the Arbitrator held that the effects of any injury to the lumbar spine had ceased and, relying on Peric and Moore, he would not refer that claim to an AMS.
The fresh evidence sought to be tendered
Mr Buttar has sought to tender the following evidence on appeal:
(a) a further statement from Mr Jaffarie, dated 1 July 2014;
(b) a statement from Said Agha Jafari, dated 17 June 2014;
(c) a statement from Said Ali Jafari, dated 22 June 2014;
(d) a statement from Sayed Murtaza Karima, dated 17 June 2014 (but signed on 19 June 2014);
(e) several Business Activity Statements covering the quarterly periods from 1 July 2011 to 31 March 2012, and
(f) reports from Dr Maniam dated 28 February 2014, 5 May 2014 and 17 June 2014.
The legislation and authorities on fresh evidence
The introduction of fresh evidence or evidence in addition to or substitution (fresh evidence) for the evidence at the arbitration is governed by s 352(6) of the 1998 Act, which states:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
The first point to note about this provision, which applies to Arbitrators’ decisions made after 1 February 2011, is that it is in significantly different terms to the provision considered by the Court of Appeal in Haider, the decision upon which Mr Buttar relied in his submissions.
As explained by Barrett JA (Macfarlan JA agreeing) in Chep Australia Ltd v Strickland [2013] NSWCA 351 (Strickland), s 352(6) involves two threshold questions that are alternatives. The first goes to the issue of availability in advance of the proceedings. The second involves an assessment of whether continued unavailability of the evidence “would cause substantial injustice in the case”. The power to admit the evidence is discretionary but the discretion only becomes available if the Commission is satisfied as to one of the threshold matters.
Barrett JA explained (at [31]) that, if the first test is not satisfied, that is, if the evidence could, with reasonable diligence, have been obtained and tendered at the arbitration, the second test requires a decision as to the result that “would” emerge if the evidence were taken into account and the result that “would” emerge if it were not. If the result would be the same on each hypothesis, the ends of justice cannot be said to have been defeated by exclusion of the evidence. The power to admit further evidence is therefore concerned with evidence which, if accepted, would have been likely to demonstrate that the decision appealed against was erroneous (Northern NSW Local Health Network v Heggie [2013] NSWCA 255 (Heggie) per Sackville AJA (Ward JA agreeing) at [66]).
Mr Buttar has based his submissions on Haider, a decision that, in light of the amendments that took effect in 2011, no longer governs fresh evidence on appeal. Rather than submitting on the terms of the current legislation, Mr Buttar submitted, in relation to all of the fresh evidence sought to be tendered on appeal, that it is “material” and “probative” and, as it could rationally affect the assessment of the probability of the existence of facts in issue, namely, Mr Jaffarie’s credit and whether he has recovered from his injury, should be admitted. These submissions are incorrect and ignore the terms of the current legislation and the authorities dealing with it. I intend to apply the terms of the legislation and the principles discussed in Heggie and Strickland.
Mr Buttar made no submissions on why any of the evidence sought to be tendered as fresh evidence on appeal could not have been obtained at the time of the arbitration. Clearly, it could have. As a result, for the evidence to be admissible on appeal, it must be established that the refusal to admit the evidence “would cause substantial injustice in the case”.
It is convenient to deal with each category of document separately.
Mr Jaffarie’s statement of 1 July 2014
The evidence in Mr Jaffarie’s statement that I have not already set out is as follows:
“1) My name is Sayed Akbar Jaffarie.
2) I previously provided statements of 14 August 2009, 7 October 2010, 11 November 2011 and 25 September 2013. These statements were filed with the Application to Resolve a Dispute, matter number 10946/2012. I confirm the contents of those statements were true and correct at the time I signed them.
3) On 12 June 2009 at about 11 o’clock in the morning I experienced severe pain in my back and my left leg while I was lifting mold [sic], weighing about 20 to 25 kilograms working for Quality Castings located at 42-50 Voilet [sic] Street, Reversby [sic] NSW 2212.
4) In my section I was working with a New Zealand man whom I knew by the name of Aps [referred to as “Abs” in Mr Jaffarie’s statement of 14 August 2009]. I put down the mold [sic] and told Aps I had hurt myself. Aps made fun of me and said ‘you have cancer’. As I was new and didn’t know much about the law and my English was very weak and he didn’t advise me of anything, instead of joking and making fun of me, I didn’t know who was the supervisor there. I was thinking that Aps was my supervisor because I was working according to his orders.
5) Besides Aps I did now [sic, not] know any other worker because I was all the time working with him in that section. I was feeling a lot of pain. I just relaxed for about five minutes and started to work with a lot of pain. As it was a Friday, and I was working from Monday to Friday I had the next two days off and I thought it would get better in the next two days.
6) So the next week I didn’t stop working because I thought if I stop working I would be fired from the company and I was getting good money. I worked rill [sic, till] Friday with severe pain working slowly and taking my time and feeling a lot of pain but I didn’t have any other choice but to work and no one cared for me so I was so embarrassed that I could [sic, not] tell Aps again. I thought if I tell him he would make fun of me again.
7) On Friday, I think Aps had told the boss about my injury and I think they knew I was not working like before so they gave me a letter that my services were no longer required due to a down [sic] in company [sic].
8) After I finished work I went home and went straight to see a doctor at Auburn Medical Centre. I told them I had back pain in my whole back. The doctor sent me for x-ray and when I went to see Dr Selim he referred me to Dr Vijay Maniam. Dr Maniam from the start till now is my treating specialist.
9) After seeing the doctor with the x-ray and CT scans showing problem in my back, I went to my employer to given [sic] me [sic] claim number. After I went there they told me to leave the area and said ‘you don’t have any injury in your back.’ Then I called the Law Society of NSW[.] [T]hey sent me a letter to my home address and there was written names of three lawyers. I chose Veritas Legal since it was the closest, it was in Parramatta and I was living in Auburn [at] that time.
10) I went there and they took my details and after [a] couple of weeks the employer started to pay my weekly benefits and for my treating physiotherapy etc but soon after four to six weeks they stopped everything. So finally we had a teleconference in WCC in 2012 as I had the report of 17% WPI and weekly and medical expenses but I rejected that. I said I wanted to go to arbitrator [sic] to decide because I had severe pain and [was] not able to work.
11) Then on 19 June 2013 my visa was cancelled by Immigration and I was taken to Villawood Detention Centre and I had an appointment with the respondent’s specialist, Dr Robert Breit, on 19 August 2013. My lawyers did the arrangement with immigration [sic] to take me for that appointment. I saw him on 19 August 2013.
12) Then the next conference in WCC was on 2nd October 2013 before Arbitrator Nolan. On [sic] that conference my lawyer’s agent Miss Kristen Abi Khatter [sic] and my barrister Mr Ross Henrahan [sic] said that they don’t want to give a good offer because I was in detention Centre. They both tried their best to convince me to accept the offer of $10,000 and they said it was [a] very good offer because I was in detention Centre but I didn’t accept and the barrister said ‘I’m sure you won’t get good offer by Arbitrator’ but again I didn’t accept.
13) I wanted it to be decided by the Arbitrator as I had full faith in the Arbitrator. In that conference that Arbitrator adjourned the matter for another time and asked my lawyers to get report from my specialist Dr Maniam and Dr Max Ellis because my injury was refused by the respondent’s doctor. We had to get the report from my specialist’s [sic] Dr Maniam and Dr Ellis. After that my lawyer advised me that we had another conference in WCC on 12 February 2014 before the Arbitrator.
14) My lawyer had more than three month[s] to get the report from my specialist’s [sic] and every week I used to call them from the Detention Centre to get the report and they said they will write to the doctors to get it.
15) On 27 January my lawyers gave me the account details to transfer money for Dr Ellis’s report. I asked my wife to transfer the money and I called them on Tuesday. They said they received the money and they will get Dr Ellis’s report.
16) On Monday 3 February 2014, Miss Kristen Abi Khattar from my solicitor called me and said they have received the report from Dr Ellis and asked me to transfer in the same account the sum of $1,100 for Dr Maniam’s report and when I asked that [sic] why you didn’t ask for the money a week or two weeks ago so the report had been [sic] ready before[.] [S]he said that she wrote for the reduce [sic] of his fees which I never asked her to do so [sic]. She said she had talked to Dr Maniam and the report had been written and it was ready and we just need to transfer the money to get it.
17) She asked me to transfer the money in a week [sic] time but I said I will do it tomorrow. I don’t want to delay it anymore because I had to pay it anyway. On 4 February my wife transferred the money to the same account which I transferred money for Dr Ellis [sic] report and when I called her on Tuesday she said she hasn’t got the money. I asked her how come she got the money same day last time but haven’t got [the] money this time. She said its [sic] gone to [the] trust account and that which I couldn’t understand.
18) On Thursday 6 February 2014 she sent me a text message to my mobile that she got the money and will transfer it to Dr Maniam and get the report. After four days on Tuesday 11 February she called me at about 4 o’clock in the afternoon and asked me to call Dr Maniam and ask for the report and asked me to tell Dr Maniam to email or fax them the report.
19) I called Dr Maniam’s office and asked for the report to send it to my lawyer. They said they can’t prepare the report in one day. The man in the office of Dr Maniam by the name of Michael said that you[r] lawyer had to make the payment at least 10 days or a week ago for the report to have been done. Then I called on Ms Khatter [sic] and she said it doesn’t matter much and they don’t need the report and said she will ask for my money to be refunded but I asked her not to do so.
20) On Wednesday 12 February 2014 when I went to WCC[.] I talked about the report and asked her to mention before [the] Arbitrator to give us time to get the report. She said my matter has already taken [a] long time [and] they can’t ask for it but she promised me that she will mention it before the Arbitrator.
21) After that she and my barrister Mr Henrahan [sic] again came and forced me to accept $10,000 but I refused and then they went outside and was [sic] talking to the respondent’s barrister until the Arbitrator was about to start proceeding [sic] the matter. My barrister and Miss Khatter [sic] came and asked me to accept the offer of $15,000 and told me it was very good offer since I was in Detention Centre but I refused. I said I want my right from the Arbitrator and I don’t want to deal.
22) When the proceedings started I couldn’t understand the argument between them and when I asked Ms Khatter [sic] to mention the report she asked me to be quiet and when I said I want to say something she said you can’t say anything we have to say all. So after the argument the matter was finished [and] the Arbitrator said you all need to come on 14 February 2014 on Friday for judgment. Ms Khatter [sic] said I don’t have to come and she will come and collect the judgment.
…
29) I have a lot of pain in my back at the moment and always go to see my specialist Dr Maniam and GP Dr Selim but since I am in [the] Detention Centre I can’t see then [sic] on the basis I used to visit them outside because it is very hard to book appointments from here and the immigration also doesn’t allow me to go every week on escort.
30) I have a WorkCover Certificate till 3 August 2014 and my specialist Dr Maniam is checking me and want [sic] to give the report I have damage in my back and it still continues and I need treatment.
31) The shop I had was jointly carrying [on] business with Said Ali Jafari and I never used to work there except doing the managements [sic] and order for the stuffs [sic]. I have statements from all three people working and helping me there stating I was not able to work due to my back injury.
32) The business was shut down on 18 September 2012. After that I have never worked anywhere else. I was receiving Centrelink until 19 July 2013.”
Mr Buttar submitted that Mr Jaffarie’s statement is material and probative because it explains the delay behind obtaining Dr Maniam’s reports and clarifies the nature of Mr Jaffarie’s business. It therefore goes to Mr Jaffarie’s credit.
Mr Jaffarie’s new statement must be considered in light of the evidence he gave before the Arbitrator. That evidence was in statements dated 14 August 2009, 7 October 2010, 11 November 2011 and 25 September 2013. The August 2009 statement set out the circumstances of the incident on 12 June 2009 in substantially the same terms as in the new statement. Thus, the new statement adds nothing to that issue. In any event, as Mr George corroborated Mr Jaffarie’s evidence of having complained of back pain, the Arbitrator accepted that Mr Jaffarie had injured his back on 12 June 2009. It follows that paragraphs 1 to 11 of the new statement are irrelevant and make no difference to the outcome. They are not admitted on the appeal.
The one difference between the new statement and the statement of 14 August 2009 that might be relevant is that, in the August 2009 statement, Mr Jaffarie said that when he went to work on Friday 19 June 2009 his employer gave him a letter “stating due to a shortfall and downturn in work, there was no work available”.
In contrast, in his new statement, Mr Jaffarie said (at paragraph 7) that “[o]n Friday, I think Aps [sic] had told my boss about my injury and I think they knew I was not working like before so they gave me a letter that my services were no longer required due to down [sic] in company [sic]”. If anything, this discrepancy raises a further issue as to the reliability of Mr Jaffarie’s evidence. In these circumstances, its admission on appeal would not advance Mr Jaffarie’s position and would not establish error by the Arbitrator. Its exclusion therefore causes no injustice.
Paragraph 12 relates to negotiations and is irrelevant to the issues on appeal and is rejected.
Paragraphs 13 to 22 deal with the proceedings at the arbitration and are relevant to explain why Dr Maniam’s report of 28 February 2014 was not obtained earlier. Whether the rejection of this evidence will cause a substantial injustice depends on whether the additional evidence from Dr Maniam is admitted. That issue is discussed below.
Paragraphs 29 and 30 are irrelevant to the issues on appeal and are not admitted.
Paragraphs 31 and 32 concern Mr Jaffarie’s activities in his business. Neither paragraph adds anything to Mr Jaffarie’s statement of 11 November 2011, which was before the Arbitrator. The exclusion of these paragraphs causes no injustice, let alone a substantial injustice, and they are not admitted.
Lay witness statements
The statements from Said Agha Jafari, Said Ali Jafari and Sayed Murtaza Karimi are all essentially to the same effect.
Said Agha Jafari said that Mr Jaffarie “was unable to work” and he (Said Agha Jafari) used to work in the shop after school and on weekends. Mr Jaffarie’s job was “just to order the stuff and do management but [he] was not able to lift and work”.
Said Ali Jafari said that he bought the shop in partnership with Mr Jaffarie. Because Said Ali Jafari could not read or write English, the business was registered in Mr Jaffarie’s name only “so he [Mr Jaffarie] could do the tax returns and GST”. Said Ali Jafari promised that he would “bring the stuff from market, fill the shelves, and [do] all [the] other work with his friend who was working there as a worker”.
Said Ali Jafari said that Mr Jaffarie “just had to do the paper work and orders for stuff and do the management”. He added that Mr Jaffarie was “fully not able to do any work except some kind of reading papers doing insurance and Tax returns and also sometime if feel ok to come for 2-3 hours in the shop”. Inconsistent with Mr Jaffarie’s assertion in his new statement that the business shut down on 18 September 2012, Said Ali Jafari said that the shop operated until mid-2013.
Sayed Murtaza Karim said that he worked at the shop. He was paid less money ($300-$400 per week) because the business was not going very well. Mr Jaffarie promised to pay him more if the business improved, but that did not happen. He said that Mr Jaffarie was unable to work because of his back injury. Mr Jaffarie used to “order stuff but was not able to lift”. He used to come in for two or three hours, look if the “stuff was set up and everything was in order”.
This evidence is broadly consistent with Mr Jaffarie’s statement of 11 November 2011, where he said he attended the shop no more than four times per week for no more than two or three hours to check on the staff and order whatever may be needed to fill the shelves. He said that he had not made a profit because he had to engage staff to do most of the work he would normally have done. He said his workers were his friends who worked for significantly reduced wages to assist him. They would attend the markets to collect the fruit and arrange for the groceries and stack the shelves. He promised them that, if the business went well, they could share in the profits. The Arbitrator noted and summarised this evidence in detail at T22–23.
The Arbitrator then turned to Mr Jaffarie’s tax returns for 2011 and 2012. The Arbitrator said (at T24.25) that there was no reference in either tax return to the payment of wages, which was inconsistent with Mr Jaffarie’s evidence that he was paying staff. This led the Arbitrator to reject Mr Jaffarie’s evidence that “he had paid people doing the work and that he wasn’t doing the work” (T25.29). This was another matter that left the Arbitrator “in a great deal of disquiet in relation to [Mr Jaffarie’s] evidence” (T29.31).
One of the substantive complaints on appeal is that the Arbitrator erred when he said that there was no reference in either of Mr Jaffarie’s tax returns to the payment of wages. This submission is correct. In a document headed “Tax Return Worksheets”, attached to Mr Jaffarie’s 2012 tax return, there is a sub-heading “All Other Expenses” (for the business of Mashallah Fruit and Food) which has, among other things, the figure of $11,154 for “wages”. Therefore, the Arbitrator’s statement (at T25.24) that the tax return does not disclose any payment of wages to employees was incorrect.
Mr Malouf submitted:
(a) that there is no evidence of when those payments were made or to whom and this is important when one considers that there is no evidence of wages being paid in the 2011 financial year;
(b) no amount appears under “Total salary and wage expenses” in the body of the 2012 tax return;
(c) Mr Jaffarie’s counsel at the arbitration, Mr Hanrahan, conceded that the tax returns were accurate and accepted that they did not suggest that Mr Jaffarie paid wages. It was therefore unnecessary and inappropriate for the Arbitrator to read dozens of pages of financial material and interpret the meaning of them of his own accord, and
(d) even if the Arbitrator erred on this issue (which was not conceded), he would likely have made the same findings on Mr Jaffarie’s credit.
Other matters
A further authority that requires comment is the Court of Appeal’s decision in State of New South Wales v Bishop [2014] NSWCA 354; a decision delivered two months after Bindah. Though my decision does not depend on it, it raises a number of issues relevant to the present appeal.
In that case, the worker suffered an injury to her lumbar spine in the course of her employment on 6 May 2004. The employer accepted liability for that injury. The main issue in dispute concerned a claim for lump sum compensation and medical expenses for a fracture to her left foot and ankle caused when she fell at home on 25 June 2011 when her left leg gave way, she said, as a result of the back injury. The Arbitrator found no causal link between the fall at home and the back injury. The worker appealed.
Deputy President O’Grady overturned the Arbitrator’s decision and found the fall suffered by Ms Bishop on 21 June 2011, and its consequences, resulted from the back injury received by her on 6 May 2004. He ordered the employer to pay the worker’s medical and associated expenses relating to treatment made reasonably necessary by reason of the fall. He remitted the matter to the Registrar for referral to an AMS for assessment of any additional whole person impairment of the worker’s lumbar spine as a result of injury received on 6 May 2004, and of any whole person impairment with respect to her left lower extremity following the fall on 25 June 2011, “which fall and any consequential loss is found to be causally related to that injury of 6 May 2004” (emphasis added). The reference to “is found to be causally related to that injury of 6 May 2004” was a reference to the finding on causation made by the Deputy President. The employer appealed.
Basten JA held (at [10]–[11]) that the Deputy President correctly identified the issue to be whether the evidence of “giving way” on the day of the fall should be accepted and, if so, whether the medical evidence supported the existence of a causal nexus between the back injury and the giving way of the left leg. This was a question of causation that was “purely a question of fact for the arbitrator” (Basten JA at [20]). The Deputy President had not erred in finding that the Arbitrator erred in not finding that the relevant causal connection had been established. Having correctly found that the Arbitrator had erred, the error identified required that the finding on causation be set aside. To correct that error, the Deputy President was entitled to form his own conclusion as to the proper resolution of the matter (Basten JA at [24]).
Emmett JA (with whom Gleeson JA agreed) identified the fall at home as “the 2011 Injury” ([32]), noting that the worker claimed that that “injury was the result of disability caused when she suffered an earlier injury to her lumbar spine on 6 May 2004” (the 2004 injury). His Honour said that the Arbitrator determined that, in relation to the claim for a “consequential injury” to the worker’s foot and ankle, there should be an award for the employer and that the Deputy President found that the Arbitrator had erred in finding that there was no causal link between the 2004 injury and the 2011 injury.
His Honour noted that the Deputy President revoked the Arbitrator’s orders and made the orders noted at [272] above. Those orders, and the Deputy President’s decision, included an express finding that the fracture of the left foot and ankle was causally related to the back injury of 6 May 2004. The Deputy President did not find that the worker suffered a s 4 injury to her left foot and ankle. Thus, though Emmett JA used the term “injury” to describe the fracture of the worker’s left foot and ankle in 2011, his Honour was clearly aware that that condition was not a s 4 injury but was a consequential condition that resulted from the accepted s 4 injury to the back in 2004.
Significantly, for the purposes of the present appeal, no issue arose, based on any of the obiter comments in Bindah, as to whether the Commission had jurisdiction to determine if the fracture to the left foot and ankle had resulted from the 2004 injury to the back. The Court clearly accepted that the Commission did have jurisdiction. Thus, the causation issue was an issue for the Commission. This approach was consistent with the approach I outlined earlier in this decision, namely, that, save for the nature and extent of hearing loss suffered by a worker, it is for the Commission to determine if a worker has received an injury and whether, as a result of that injury, a further or consequential condition (such as the fracture in Bishop) has arisen.
However, the degree of whole person impairment that resulted from the worker’s two conditions, namely, the accepted s 4 injury to the back in 2004 and the fracture to the left foot and ankle (which was found by the Commission, after a contested hearing, to have resulted from the back injury), was a medical dispute exclusively for an AMS to assess. As explained earlier in this decision, it would not be open to the AMS to determine that the left foot and ankle condition had not resulted from the 2004 back injury, but it would be open to the AMS to determine that the worker suffered no whole person impairment as a result of the fracture to the left foot and ankle.
Thus, in the present case, it was for the Commission to determine if Mr Jaffarie received an injury in the course of or arising out of his employment and that his employment was a substantial contributing factor to that injury. However, having found that he did receive a compensable injury to the lumbar spine, it was for the AMS to determine the “degree of permanent impairment of the worker as a result of” (s 319(c)) that injury. As the Arbitrator determined that Mr Jaffarie did not injure his thoracic spine, and as that finding has not been challenged, there is no basis for asking an AMS to assess whole person impairment as a result of the condition of the thoracic spine.
Conclusion on the lump sum compensation issue
It follows that, in light of the current state of the authorities, the Arbitrator erred in making an award for the respondent in respect of Mr Jaffarie’s claim for lump sum compensation and in refusing Mr Jaffarie’s reconsideration application. It should now be accepted that an Arbitrator’s finding, when dealing with a claim for weekly compensation or for medical expenses, that the effect of the injury has ceased does not determine the claim for lump sum compensation for whole person impairment as a result of the injury. That question must be remitted to the Registrar for referral to an AMS.
SPECIFIC GROUNDS RELATING TO THE APPEAL AGAINST THE DECISION OF 10 JUNE 2014
Submissions
This topic is largely dealt with above. However, in addition to relying on the submissions discussed above, Mr Buttar submitted that, because the Arbitrator did not refer to Dr Maniam’s reports of 28 February 2014 and 5 May 2014, which were attached to Mr Jaffarie’s letter of 26 May 2014, the Arbitrator “exercised bias in favour of the respondent, as he has not afforded natural justice or procedural fairness to [Mr Jaffarie]” because he did not refer to those reports in his decision of 10 June 2014.
Mr Buttar contended that the Arbitrator “demonstrated further bias” in his reconsideration decision by stating that he determined the reconsideration without providing the respondent with an opportunity to file written submissions. He added that it was “palpably false” of the Arbitrator to make such an assertion, as he had received an application by the respondent dated 2 June 2014 opposing Mr Jaffarie’s application for reconsideration.
Discussion and findings
Mr Buttar’s additional submissions on this topic demonstrate a fundamental misunderstanding of basic legal principles. Dr Maniam’s reports of 28 February 2014 and 5 May 2014 were not relevant to the reconsideration decision, which turned on an application of Peric and Moore. For the same reason, the failure to refer to the reports did not amount to a denial of procedural fairness. The suggestion that the Arbitrator’s failure to refer to those reports amounted to bias was plainly wrong and, in the circumstances, improper.
While it is correct that the Arbitrator said that he determined the reconsideration application without providing the respondent with the opportunity to file written submissions, and that the respondent had in fact filed submissions on 2 June 2014, those matters were irrelevant to the reconsideration decision. The Arbitrator prepared his draft reasons for refusing the application on 29 May 2014. At that time, he did not have the respondent’s submissions. He amended his reasons, to delete an incorrect reference to Mr Jaffarie having filed an appeal against the determination of 17 February 2014, and the Commission published his reasons on 10 June 2014.
The failure to ask the respondent to file submissions did not demonstrate bias, or anything like it. If the application could be disposed of in favour of the respondent without the need to hear submissions from it, the Arbitrator was entitled to take that course. In the circumstances, the failure to call upon the respondent was of no moment (South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 42, per McColl JA at [110]). It certainly did not amount to bias.
WORK INJURY DAMAGES THRESHOLD
Submissions
Mr Buttar submitted that the reports of Dr Maniam provide an assessment (of permanent impairment) above the threshold for work injury damages. Therefore, there is a threshold dispute under s 313 of the 1998 Act, which must be determined by an AMS. The Arbitrator’s decision was therefore an error of fact, law or discretion under s 352(5) of the 1998 Act.
Discussion and findings
This submission is completely misconceived. The claim before the Commission is a claim for weekly compensation, lump sum compensation for permanent impairment, and compensation for medical expenses. It is not a claim for work injury damages. In these circumstances, it is inappropriate to talk in terms of the threshold for work injury damages. No such claim is before the Commission and the Arbitrator did not err in not referring the claim to an AMS to determine if Mr Jaffarie met the work injury damages threshold. He was not asked to make such a referral and it is not an error for an Arbitrator not to deal with an issue not before him or her.
THE ARBITRATOR’S FINDING OF FACT AND RELEVANT/IRRELEVANT CONSIDERATIONS
Submissions
Mr Buttar submitted that the Arbitrator made an adverse finding as to Mr Jaffarie’s credit without questioning or cross-examining him. He said that Mr Jaffarie’s statements were “read in evidence without challenge by the respondent” and, consequently, the Arbitrator could not have arrived at an adverse finding regarding Mr Jaffarie’s tax returns or statements, or his injury and the extent thereof, without having questioned him on these issues. Mr Buttar contended that there has been a denial of procedural fairness and a breach of the rule in Browne v Dunn (1893) 6 R 67.
Had Mr Jaffarie been questioned, it would have been found that his business was shut down on 18 September 2012, not 19 June 2013. Further, the Arbitrator found that Mr Jaffarie “lied consistently” to doctors about not working after his injury, noting Dr Breit’s history and comparing it to his findings regarding Mr Jaffarie’s tax returns. Based on the fresh evidence sought to be tendered on appeal, Mr Buttar submitted that Mr Jaffarie was not working at the time he saw Dr Breit and, also, not operating a business at that time.
Mr Buttar pointed out that the Arbitrator said that there was no reference in Mr Jaffarie’s tax returns to the payment of wages. He said that the Arbitrator overlooked the Business Worksheet, which confirms that Mr Jaffarie paid $11,154 in wages. Therefore, the finding of fact regarding Mr Jaffarie’s tax returns, his credit, and his incapacity were affected by error. Mr Buttar argued that the Arbitrator was under a “duty” to question Mr Jaffarie before reaching a conclusion on Mr Jaffarie’s credit, based on the tax returns.
Discussion and findings
I will deal with the last point first. I have already held that the Arbitrator erred in saying that the 2012 tax return did not disclose the payment of wages, and it is not necessary to repeat my comments on that issue. As that error has affected the outcome on the issue of incapacity (that is, the question of incapacity that has resulted from the injury to the lumbar spine), that part of the claim, including the nature of the lumbar injury and Mr Jaffarie’s entitlement to medical expenses, must be re-determined. However, the rest of Mr Buttar’s submissions under this general heading are misguided and wrong.
There is no right to cross-examination in the Commission (AluminiumLouvres & Ceilings P/L v Zheng [2006] NSWCA 34 at [37]; 4 DDCR 348). The respondent was not prevented from attacking Mr Jaffarie’s credit because counsel had not cross-examined him. Nor was the Arbitrator required to question Mr Jaffarie before making an adverse credit finding. A court is not obliged to accept evidence which is not the subject of cross-examination if it is contradicted by a credible body of substantial evidence (Ali v Nationwide News Pty Ltd [2008] NSWCA 183 [110]–[112]; M & E M Hull Pty Ltd v Thompson [2001] NSWCA 359 [21]; Bulstrode v Trimble [1970] VicRp 104; [1970] VR 840, 848–849; Gaunt v Hooft [2009] WASC 36 [41]–[42]; Bauskis v Liew [2013] NSWCA 297 per Gleeson JA at [111] (Beazley P and Barrett JA agreeing).
Thus, as the Commission has held in dozens of similar cases, the absence of cross-examination did not mean that Mr Jaffarie’s evidence was unchallenged or that the Arbitrator was obliged to accept his assertions. There was a substantial body of evidence before the Arbitrator that was inconsistent with Mr Jaffarie’s assertions. The Arbitrator had to assess the veracity of Mr Jaffarie’s claims by weighing them against the evidence overall. Subject to the error regarding the 2012 tax return, that is what the Arbitrator did.
The circumstances in which Browne v Dunn requires a matter to be put in cross-examination depend on the nature of the pre-trial preparation and whether the pre-trial preparation has been sufficient to give notice to a witness of the submissions ultimately intended to be put by a party (Campbell J in West v Mead [2003] NSWSC 161; discussed and applied in New South Wales Police Force v Winter [2011] NSWCA 330 from [81]). (See also the discussion on the application of Browne v Dunn to proceedings in the Commission in Quadi v The Reject Shop (Aust) Pty Ltd [2008] NSWWCCPD 3 at [56]–[63].)
In the present matter, all the material on which Mr Beauchamp based his attack on Mr Jaffarie’s case was material that was available to both sides before the arbitration commenced. Mr Beauchamp’s submissions merely drew the Arbitrator’s attention to the several inconsistencies in Mr Jaffarie’s claims. Mr Jaffarie was well aware of that material and his counsel addressed on it. Moreover, his counsel took no objection to any of Mr Beauchamp’s submissions. While it is accepted that Mr Beauchamp erred in submitting that the 2012 tax return did not disclose any wages, the evidence supported his other submissions.
The Arbitrator was entitled to determine the case on the evidence presented. That evidence included the evidence in the medical histories that Mr Jaffarie had not worked since he left his job with the respondent. The Arbitrator said (at T28.29) that there was a “consistent theme” (T28.31) throughout the medical evidence from the psychologist, the psychiatrist, Dr Breit and Dr Ellis that Mr Jaffarie did not do any work following the employment with the respondent. This was a matter that was fully ventilated in submissions before the Arbitrator. He concluded (at T29.3) that that was “a serious matter which weighs against [Mr Jaffarie’s] credit and causes me a great deal of disquiet”.
On any view of Mr Jaffarie’s activities in the fruit shop, the history that he had done no work since leaving the employ of the respondent was incorrect and the Arbitrator was entitled to take that into account in his assessment of the claim. The Arbitrator’s observation was open on the evidence even though Mr Jaffarie had not been cross-examined. The submission that Mr Jaffarie was not involved in the fruit shop at the time he saw Dr Breit misses the point. Dr Breit’s history was that Mr Jaffarie said he had not worked since he stopped work for the respondent. It was open to the Arbitrator to consider that evidence against the other evidence of Mr Jaffarie’s involvement in the fruit shop. His approach involved no denial of procedural fairness to Mr Jaffarie.
The question of when Mr Jaffarie’s business shut down was (apparently) the subject of agreement at the arbitration. Mr Beauchamp submitted that no doctor had a history that Mr Jaffarie had run a shop up to the time he was put into custody, which Mr Hanrahan volunteered was on 19 June 2013 (T40.25–41.1 – 12 February 2014). In any event, the exact date on which the business shut was not critical to the Arbitrator’s determination. (I note, in passing, that the evidence sought to be tendered on appeal from Said Ali Jafari is that the shop operated from November 2010 to mid–2013, which is inconsistent with the claim by Mr Jaffarie that the business closed on 18 September 2012.)
BIAS
Submissions
Mr Buttar submitted that the Arbitrator “exercised bias in favour of the respondent” because:
(a) he preferred the opinion of Dr Breit over the opinions of Dr Maniam and Dr Ellis;
(b) Dr Maniam had more knowledge, experience and understanding of Mr Jaffarie’s injury and complaints and his evidence should have been afforded greater probative value;
(c) he “refused to evaluate the probative force” of Dr Ellis’s report of 17 January 2014;
(d) he did not accept Dr Ellis’s explanation as to how Mr Jaffarie’s cultural background could explain why his complaints and presentation may be perceived as exaggerated (noting that Dr Ellis said that Mr Jaffarie did not present with abnormal illness behaviour and that his complaints were consistent with the radiological findings), and
(e) having made an adverse finding regarding Mr Jaffarie’s credit, based on the tax returns, was “convinced that [Mr Jaffarie] was a wholly untruthful witness” and was “therefore distracted from giving proper consideration to cogent and probative evidence in support of [Mr Jaffarie’s] claim” (Minister for Immigration and Multicultural Affairs v Asif [2000] FCA 228 (Asif) at [32]–[34]).
Discussion and findings
The allegation of bias, which I have assumed is an allegation of actual bias, is unsustainable and demonstrates a serious misunderstanding of the law relating to bias and the issues involved in the case. It was a manifestly improper submission.
To establish that a decision maker is guilty of actual bias, in the form of pre-judgment, the appellant has to prove that the decision maker was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented” (Minister for Immigration v Jia Legeng [2001] HCA 17 (Jia Legeng) at [72] per Gleeson CJ and Gummow J; 205 CLR 507). The question is not whether the decision maker’s mind is blank but whether it is open to persuasion (Jia Legeng at [71]).
The following comments assume, contrary to my finding, that the Arbitrator had not erred in finding that the tax returns did not show that Mr Jaffarie had paid wages. By preferring the evidence of Dr Breit to the evidence of Drs Ellis and Maniam the Arbitrator did not demonstrate bias, or anything approaching it. He expressly noted (at T30.20) Dr Ellis’s explanation as to how Mr Jaffarie’s cultural background could explain why his complaints and presentation may be perceived as exaggerated.
The Arbitrator did not accept that cultural variations explained Mr Jaffarie’s failure to tell at least four doctors of his work (in the fruit shop) and the “gross inconsistencies between his sworn evidence about paying people and the absence of this appearing in the tax returns” (T30.32). It was those inconsistencies, and the evidence of exaggeration, that led the Arbitrator to prefer Dr Breit’s view. Leaving aside the error with regard to the tax returns, this approach was open and did not demonstrate bias.
The “probative force” of Dr Ellis’s opinion was significantly diminished if the Arbitrator did not accept the history on which it was based. For reasons given, the Arbitrator did not accept that the effect of the lumbar spine injury was continuing. But for the error with regard to the tax returns, the Arbitrator’s approach was open. It disclosed nothing approaching pre-judgment of the issues.
The fact that Dr Maniam was the treating specialist did not mean the Arbitrator had to accept his evidence or that he demonstrated bias in not accepting it. Like the evidence from Dr Ellis, the probative value of Dr Maniam’s evidence depended on the history on which it was based and an assessment of the evidence overall. The Arbitrator did not accept Mr Jaffarie’s evidence and did not accept Dr Maniam’s conclusions.
The submission that, having made an adverse finding regarding Mr Jaffarie’s credit, the Arbitrator was distracted from giving proper consideration to cogent and probative evidence in support of Mr Jaffarie is untenable. The Arbitrator had to assess the reliability of the evidence from Drs Ellis and Maniam and weigh it against the evidence of Dr Breit. For reasons given, he preferred the evidence of Dr Breit. That general approach did not demonstrate bias.
Asif gives Mr Jaffarie no support. That case concerned an application for a spouse visa heard by the Immigration Review Tribunal. The Federal Court held that the Tribunal member displayed bias because his decision demonstrated a determination to reject the applicant’s evidence as to the genuineness of the marriage “come what may” ([15]). That followed because:
(a) the Tribunal member showed by his comments that he was prepared to treat the applicant’s lies not simply as providing a reason to disbelieve him but also as providing positive evidence of a fact which was not correct;
(b) the Tribunal member did not make any findings about the genuineness of the applicant’s fear of admitting that he was married in an interview in December 1995, and
(c) multi-barrelled questions put by the Tribunal member to the applicant supported the view that the member “was not open to be persuaded that the [applicant] did have a genuine commitment to the marriage” ([17]).
Not one of the features referred to in Asif is present in the current matter. The Court in that case (Drummond, North and Madgwick JJ) observed (at [18]) that it was understandable, in view of the applicant’s persistent deceit in his dealings with the Immigration Department, that the Tribunal member would approach the evaluation of the applicant’s evidence with “very considerable scepticism”. The problem was that the rejection of the applicant’s evidence could not, of itself, conclude the case against him, but that was how the Tribunal disposed of the case.
In the present matter, the acceptance of the evidence from Drs Ellis and Maniam depended on accepting Mr Jaffarie’s evidence. In view of several inconsistencies in Mr Jaffarie’s case, which the Arbitrator said weighed against Mr Jaffarie’s credit and caused him a great deal of disquiet in accepting a great deal of what Mr Jaffarie said, unless it was corroborated by other evidence, the Arbitrator did not accept Mr Jaffarie’s evidence. Notwithstanding this finding, because of the partial corroboration provided by Mr George, the Arbitrator accepted Mr Jaffarie’s evidence that he injured his lumbar spine on 12 June 2009. To suggest that such an approach demonstrated bias is simply untenable nonsense and offensive.
This “ground” of appeal is rejected.
MATERIAL ERROR
Submissions
Mr Buttar submitted that the above matters were all material in the sense that they were capable of affecting the outcome.
Discussion and findings
I accept that the Arbitrator’s failure to consider the wages in the 2012 tax return and the failure to refer the assessment of Mr Jaffarie’s whole person impairment as a result of the injury to the lumbar spine have affected the outcome. It follows that Mr Jaffarie’s entitlement to weekly compensation, lump sum compensation and medical expenses as a result of the injury to his lumbar spine, must be re-determined.
It is a matter for the next Arbitrator how the second arbitration proceeds. However, if he or she finds that Mr Jaffarie suffered a compensable injury in the course of or arising out of his employment with the respondent then, to reduce the possibility of inconsistent findings between the Commission and the AMS, it might be prudent if the permanent impairment issue is referred to an AMS prior to the final determination of the other issues.
CONCLUSION
The appeal against the Arbitrator’s findings that Mr Jaffarie recovered from the effects of his lumbar spine injury and the award for the respondent in respect of the claim for lump sum compensation is successful. The finding that Mr Jaffarie did not injure his thoracic spine, which has not been challenged on appeal, is confirmed and is not open to be re-determined at the next arbitration.
As it is unclear what role the adverse credit finding played in the Arbitrator’s finding that Mr Jaffarie only suffered a soft tissue injury to his lumbar spine, and as the consequences of that injury must be re-determined in any event, it is appropriate that that finding be revoked and for that question to also be re-determined. In view of the credit issues involved, the re-determination will be by a different Arbitrator.
DECISION
Paragraphs 2, 3, 4, 5, and 6 of the Arbitrator’s determination of 17 February 2014, and the determination of 10 June 2014, are revoked and the matter remitted to a different Arbitrator for re-determination in accordance with the reasons in this decision.
Paragraphs 1 and 7 of the Arbitrator’s determination of 17 February 2014 are confirmed.
COSTS
Though Mr Jaffarie had no legal representation by the time the appeal was determined, the appeal proceeded on the papers prepared by Mr Buttar and Mr Stockley. While several of the submissions filed by Mr Buttar were without substance, and some were improper, the appeal has succeeded on two important issues. In these circumstances, the respondent employer is to pay the appellant worker’s costs of the appeal, incurred up to 19 November 2014 (the date on which Mr Stockley ceased to act for Mr Jaffarie), as agreed or assessed. The question of apportionment of costs between Mr Buttar and Mr Stockley is a matter for agreement or the assessment officer. Though two appeals were filed, only one appeal should have been filed and the costs are to be assessed accordingly. Costs of the second arbitration are to follow the outcome of that arbitration.
Bill Roche
Deputy President
9 December 2014
I, JACQUELINE HAGGER, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
74
24
0