Jeld-wen Australia Pty Ltd v Quilao
[2019] NSWWCCPD 10
•18 March 2019
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |
| CITATION: | Jeld-wen Australia Pty Ltd v Quilao [2019] NSWWCCPD 10 |
| APPELLANT: | Jeld-wen Australia Pty Ltd |
| RESPONDENT: | Francis Quilao |
| INSURER: | Self-insured |
| FILE NUMBER: | A1-3339/18 |
| ARBITRATOR: | Mr R Perrignon |
| DATE OF ARBITRATOR’S DECISION: | 5 November 2018 |
| DATE OF APPEAL DECISION: | 18 March 2019 |
| SUBJECT MATTER OF DECISION: | Failure to comply with r 10.3 of the Workers Compensation Commission Rules 2011 (the 2011 Rules) – Iovanescu v McDermott [2004] NSWCA 106; r 14.1 of the 2011 Rules – DVD surveillance and surveillance report deemed to be one document for the purpose of r 10.3; whether error in the discretionary decision to refuse to admit late evidence – requirements of Practice Direction No 9 – Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274, Hamod v State of New South Wales [2011] NSWCA 375 applied; adequacy of reasons – ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCCPD 21, Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 applied |
| PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: | Leigh Virtue & Associates |
| Respondent: | Gerard Malouf & Partners | |
| ORDERS MADE ON APPEAL: | 1. Leave to appeal the interlocutory decision made on 5 November 2018 is refused. 2. The matter is remitted to the same Arbitrator for determination of the remaining issues. | |
INTRODUCTION
Jeld-wen Australia Pty Ltd (Jeld-wen) seeks leave to appeal an interlocutory decision made by Arbitrator Perrignon on 5 November 2018, in which the Arbitrator refused to admit a surveillance report (the report) dated 16 October 2018.
The report had been filed in the Commission by Jeld-wen under an Application to Admit Late Documents (AALD) dated 24 October 2018. The Commission’s records disclose that Jeld-wen filed a Certificate of Service indicating that the AALD was served on Mr Francis Quilao’s legal representative on 23 October 2018 by document exchange.
Mr Quilao opposed the admission of the report.
The Arbitrator, without hearing the basis of Mr Quilao’s objection, ruled that the report was not admitted.
BACKGROUND
Mr Quilao commenced proceedings in the Commission on 2 July 2018, alleging injury to the cervical spine, together with left shoulder symptoms which were said to have resulted from the cervical spine injury. He claimed weekly payments of compensation from 30 May 2017 to date and continuing at the rate of $1,149.94 per week. The injury to the cervical spine and the alleged consequential condition in the left shoulder were disputed by Jeld-wen. Mr Quilao’s capacity for employment was also in dispute.
The claim for compensation had previously been listed for arbitration on 17 October 2018 at which time submissions were made by both parties, but because of time constraints, Jeld-wen’s submissions were not completed. The matter was stood over to 5 November 2018 to give Jeld-wen the opportunity to complete its submissions in respect of Mr Quilao’s capacity for work.
At the arbitration on 5 November 2018, in addition to making the application to have the report admitted into evidence, Jeld-wen also made an application to have the matter dismissed on the basis that Mr Quilao had failed to comply with a notice for production issued pursuant to r 12.2 of the Workers Compensation Commission Rules 2011 (the 2011 Rules). The notice for production was issued on 23 July 2018 and directed Mr Quilao to produce his financial records (including bank statements). As Mr Quilao had failed to produce the records within the time frame, Jeld-wen called for the documents on 1 August 2018, 30 August 2018 and at the arbitration hearing on 5 November 2018. The Arbitrator declined the application to have the proceedings dismissed, and extended the time for production to 8 November 2018.
On 9 November 2018, Mr Quilao produced financial records relating to the period up to and including 31 March 2018, but failed to produce any documentation for the period thereafter.
Before raising the application to have the report admitted, Jeld-wen made an application to cross-examine Mr Quilao. That application was also refused.
The Arbitrator’s refusal to dismiss the matter, and the refusal to allow cross-examination, are not the subject of this appeal.
ON THE PAPERS
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (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.”
Jeld-wen requests that the application for leave to appeal and the appeal be listed for oral hearing. It submits that an oral hearing is appropriate because the transcript of the proceedings was not available at the time the appeal submissions were prepared, and because the matter involves an “important legal question.”[1] Mr Quilao submits that the matter can be determined on the papers.
[1] Jeld-wen’s submissions, [3].
Jeld-wen filed submissions going to the issues with the Application – Appeal Against Decision of Arbitrator (the appeal) and filed further written submissions following receipt of the transcript. Mr Quilao was granted an extension of time to file his Notice of Opposition to Appeal Against Decision of Arbitrator (the opposition) and his submissions were filed with the opposition on 31January 2019. The parties have had ample opportunity to provide submissions addressing all issues. The issues on appeal are not unusual and are matters that are commonly dealt with within the jurisdiction.
I have had regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties. I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
THRESHOLD MATTERS
The decision appealed against was made on 5 November 2018 and the appeal was filed on 27 November 2018.
The decision appealed against did not result in a monetary award of compensation. Where a decision of an Arbitrator does not concern an “award” of compensation the appeal must nonetheless affect an “amount of compensation at issue on the appeal” to pass the threshold test in section 352(3)(b) of the 1998 Act.[2] In such circumstances, the amount of compensation at issue on the appeal is the total of the claim before the Arbitrator.[3] Mr Quilao’s claim for weekly payments clearly exceeds $5,000.
[2] Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCPD 5.
[3] Sheridan v Coles Supermarkets Australia Pty Ltd [2003] NSWWCCPD 3.
There is no dispute, therefore, that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met, should leave be granted to appeal.
Jeld-wen concedes that the decision is interlocutory and that it requires leave of the Commission to appeal that decision pursuant to s 352(3A) of the 1998 Act.
Jeld-wen submits that a determination of the appeal is necessary or desirable for the proper and effective determination of the dispute between the parties. It offers the following reasons:
(a) the appeal relates to the admission into evidence of a document (the report) that has been excluded by the Arbitrator;
(b) if the appeal is not lodged until the matter is determined, the report would be excluded from being objectively considered in the issues requiring determination, and
(c) the evidence is extremely relevant to the determination of the issues. It goes to both Mr Quilao’s credit and his capacity for work, in circumstances where the report discloses that Mr Quilao has been working, when he had denied having employment.
Mr Quilao makes no submission in respect of the application for leave to appeal, other than to broadly submit that Jeld-wen has failed to satisfy s 352 of the 1998 Act.
Discussion
An appeal from an interlocutory decision may only proceed with the leave of the Commission. In accordance with s 352(3A) of the 1998 Act, the Commission is not to grant leave unless it is of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.
In order to assess whether it is necessary for the proper and effective determination of the dispute to grant leave, it is appropriate to consider the merits of this appeal.
THE EVIDENCE
The relevant evidence is annexed to the appeal. It is a nineteen page document dated 16 October 2018, addressed to the “Partner, Leigh Virtue & Associates”. The document is a report prepared by “Virtual Intelligence”, and is a report of observations made during surveillance of Mr Quilao on 23 August 2018, 28 August 2018, 30 August 2018, 2 October 2018, and on each day from 10–12 October 2018. The reporter alleges that on six of those days, Mr Quilao attended a retirement village and other residences with his wife or partner. They were observed to load a mop, bucket and cleaning products into a car at their residence and to unload those products at the retirement village and the other residences. The reporter also alleged that Mr Quilao carried bundles of shopping bags and loaded and unloaded them to and from the boot of a car, as well as drove the motor vehicle in what was described as an unrestricted manner. The report included black and white, rather unhelpful photographs of the observations. It is not apparent whether a clearer version of colour photographs was provided to the Arbitrator.
THE ARBITRATOR’S REASONS
The Arbitrator accepted that the report was relevant and further accepted that the report did not come into the hands of Jeld-wen’s legal representative until after the arbitration on 17 October 2018. The Arbitrator reviewed the report and considered that it was evidence from which he might infer that Mr Quilao might have capacity for work, or he might not arrive at that inference. He further observed that the report would have been the subject of submissions had it been admitted into evidence.
The Arbitrator said that there was no reason given as to why the evidence, which was of observations made prior to the first arbitration, could not have been obtained and served prior to that date. On that basis, the Arbitrator rejected the report.[4]
[4] Transcript of Proceedings (T), Quilao v Jeld-wen Pty Ltd (3339/18, Arbitrator Perrignon, 5 November 2018) T 3.18–3.30.
The decision was not the subject of a Certificate of Determination.
GROUNDS OF APPEAL
Jeld-wen alleges the following grounds of appeal:
(a) Ground one: error of law in failing to give adequate reasons;
(b) Ground two: error of discretion in failing to admit the document into evidence;
(c) Ground three: error of fact in determining that Jeld-wen had not provided an explanation as to why the evidence had not been adduced earlier, and
(d) Ground four: such further ground as is available following receipt of the transcript of the proceedings.
Jeld-wen did not seek to raise any further ground after it received the transcript.
LEGISLATION
The 1998 Act provides for an appeal from a decision of an Arbitrator in the following circumstances:
“352 Appeal against decision of Commission constituted by Arbitrator
(1) A party to a dispute in connection with a claim for compensation may appeal to the Commission constituted by a Presidential member against a decision in respect of the dispute by the Commission constituted by an Arbitrator.
(2) An appeal is to be made by application to the Registrar. The appeal is not to proceed unless the Registrar is satisfied that the procedural requirements of this section and any applicable Rules and regulations as to the making of an appeal have been complied with. The Registrar is not required to be satisfied as to the substance of the appeal.
(3) There is no appeal under this section unless the amount of compensation at issue on the appeal is both:
(a) at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.
(3A) There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.
(4) An appeal can only be made within 28 days after the making of the decision appealed against.
(5) An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.
(5A) An appeal under this section stays the operation of the decision appealed against pending the determination of the appeal. However, an appeal does not stay or otherwise affect the operation of a decision as to weekly payments of compensation and weekly payments of compensation remain payable despite any appeal.
(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.
(7) On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.
Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission (including, in the case of a decision about the degree of permanent impairment resulting from an injury, a direction to refer the matter for assessment by an approved medical specialist under Part 7).
(7A) Clause 2 of Schedule 2 to the Legal Profession Uniform Law Application Act 2014 applies to and in respect of the provision of legal services in connection with an appeal to the Commission under this section in the same way as it applies to and in respect of the provision of legal services in connection with a claim or defence of a claim for damages referred to in that clause.
Note. Clause 2 of Schedule 2 to the Legal Profession Uniform Law Application Act 2014 prohibits a law practice from providing legal services in connection with a claim or defence unless a legal practitioner associate responsible for the provision of those services believes, on the basis of provable facts and a reasonably arguable view of the law, that the claim or defence has reasonable prospects of success.
(8) In this section, decision includes an award, interim award, order, determination, ruling and direction.”
Rule 10.3 of the 2011 Rules requires the documents sought to be relied on in the proceedings to be filed and served as follows:
“10.3 Material to be lodged in proceedings
(1) For the purposes of section 290 of the 1998 Act, a party to proceedings must lodge and serve, with the dispute application or reply, all information and documents on which the party proposes to rely and that are in the possession or control of the party, and that have not been lodged by a party in the current proceedings and:
(a) where the proceedings are commenced by a worker, a written statement of the evidence to be given by the worker, signed by the worker; and
(b) where a party proposes to rely on the oral evidence of a witness, the party must lodge and serve a document containing:
(i) the name of the witness, and
(ii) a written statement of the evidence to be given by the witness and signed by the witness; and
(c) where the proceedings include a claim for weekly payments of compensation, the employer must provide a schedule of all weekly payments of compensation paid including the amounts and periods.
(2) Subject to subrules (3)–(4), a party may not introduce evidence that has not been lodged and served as required by subrule (1) or has not been provided to any other party as required by the 1998 Act or any Regulation or Workers Compensation Guideline made under that Act.
(3) Where a party wishes to rely on a document not lodged and served in compliance with section 290 of the 1998 Act and subrule (1), the party must:
(a) as soon as practicable after becoming aware of the document or obtaining possession of the document, serve a copy on all other parties; and
(b) not later than 5 working days prior to a medical assessment or telephone conference, on one occasion only and by the approved form, lodge all documents not previously lodged; and
(c) not later than 5 working days prior to an arbitration hearing, on one occasion only and by the approved form, lodge all documents not previously lodged.
(4) The Commission may, if it is satisfied that it is necessary to do so in the interests of justice, allow a party to introduce evidence that the party would otherwise be prevented from introducing because of the operation of subrule (2) provided the party complies with subrule (3) or the Commission gives the party leave to lodge additional documents.”
Rule 14.1 relevantly provides:
“14.1 Tapes, films, photographs etc
(1) This rule applies to:
(a) videotapes, and
(b) audiotapes, and
(c) films or photographs, and
(d) x-ray film, and
(e) the results of specialised medical investigations, including computerised tomography, medical ultrasound and magnetic resonance imaging scans, and
(f) any documents produced or received by electronic means,
on which a party proposes to rely in any proceedings.
(2) Where a document to which this rule applies constitutes surveillance material, any investigator's report concerning the material:
(a) must clearly and unambiguously identify the material, and
(b) is, for the purposes of subrule (3), deemed to be part of the document.
(3) A document to which this rule applies is, subject to this rule, a document for the purposes of rule 10.3.”
SUBMISSIONS
Jeld-wen’s submissions
Jeld-wen does not separately address each ground of appeal, and is in breach of Practice Direction 6. Practitioners are reminded that compliance with the Practice Direction is a requirement and ensures that grounds of appeal are properly enunciated, and that the submissions succinctly address each ground, so that a proper consideration of the appeal can be conducted. Practitioners are further reminded that a failure to comply with the Practice Direction may result in the appeal being rejected.
Jeld-wen submits that in rejecting the admission of the report, the Arbitrator failed to have regard to matters necessary for a proper consideration in respect of whether the report should be admitted.
Jeld-wen contends that the only consideration the Arbitrator undertook was the delay, and the explanation for the delay in lodgment of the report. In any event, it says that there was a reasonable explanation.
Jeld-wen asserts that the Arbitrator failed to consider the issue of prejudice, where there was no prejudice identified by Mr Quilao, nor did he consider the way in which any prejudice may be overcome.
Jeld-wen says that the Arbitrator also failed to consider issues of fairness and justice between the parties. Jeld-wen asserts that Mr Quilao cannot be said to be surprised by the evidence as he is aware of the activities in which he was engaged. Therefore, there can be no prejudice. Further, if Mr Quilao was prejudiced, the prejudice could be cured because the matter has not been finally determined.
Jeld-wen submits that the Arbitrator clearly ought to have admitted the report in order to afford justice to the parties, particularly in circumstances where Mr Quilao knew he had undertaken those activities and had denied undertaking employment.
Jeld-wen filed further submissions following receipt of the transcript, in which it provides transcript references for the relevant submissions, consideration and decision.
Jeld-wen refers to the decision of Deputy President Byron in Coles Myer Limited v Tabassum,[5] and submits that, in accordance with that decision, the Arbitrator ought to have considered the following matters:
(a) whether there was an acceptable explanation for the delay;
(b) whether or not a refusal to admit the evidence would cause substantial prejudice to the party seeking to tender the evidence;
(c) the prejudice (if any) to the other party;
(d) whether the delay was attributable to the legal representative and not the party personally;
(e) the nature of the proceedings, and in this case the nature of the statutory scheme, and
(f) general considerations of fairness and justice between the parties.[6]
[5] [2005] NSWWCCPD 16 (Tabassum).
[6] Tabassum, [18].
Jeld-wen submits that the Arbitrator failed to address any of those relevant considerations and that this amounts to a failure to give reasons.
Jeld-wen asserts that the Arbitrator excluded the document because there was no reason given as to why the report could not have been obtained and served prior to the first arbitration, yet the Arbitrator acknowledged that it was not available until after the first arbitration day. It says that there was an acceptable explanation for the (limited) delay in seeking to file the AALD.
Applying Tabassum, and addressing the balance of the matters to be considered, Jeld-wen submits that:
(a) there is clear and substantial prejudice to it having regard to Mr Quilao’s denial of having been engaged in any employment, which on the face of it, is inconsistent with the report;
(b) there could be no prejudice to Mr Quilao because he is aware of his own activities;
(c) in relation to the nature of the proceedings and the provisions of s 354 of the 1998 Act, namely that proceedings should be conducted with as little formality and technicality as a proper consideration of the matter permits, the report should be admitted, and
(d) taking into account the general principles of fairness and justice, a failure to admit the report is unfair and fails to afford justice between the parties.
Jeld-wen made further submissions said to be in response to the respondent’s submissions. The submissions are limited to matters pertaining to a decision by the Delegate of the Registrar to extend time for Mr Quilao to file his Notice of Opposition to the appeal. As they are not relevant to the substantive appeal, those submissions are not repeated here.
Mr Quilao’s submissions
Mr Quilao’s submissions also do not separately address each ground of appeal, which again is unsatisfactory.
Mr Quilao submits that Jeld-wen’s submissions do not adequately address its grounds of appeal. Mr Quilao says that Jeld-wen disagrees with the decision, but fails to identify error of either fact, law or discretion. Mr Quilao asserts that Jeld-wen expresses a “mere difference in interpretation and assessment of the Arbitrator’s decision.”[7]
[7] Mr Quilao’s submissions, [6].
Mr Quilao contends that the Arbitrator was well within his power to exercise his discretion as he did when the application to admit the report was made during the second arbitration day. Mr Quilao described the application as a “mere ambush” to his claim. Mr Quilao refers to the Arbitrator’s observation that the fact was that the surveillance was undertaken well before the previous arbitration day.
Mr Quilao submits that Jeld-wen has not made any submission or satisfied the requirements of s 352(3) of the 1998 Act. He contends that Jeld-wen has not satisfied the requirements of s 352 of the 1998 Act, the appeal must fail, and should not be referred to a Presidential member. The appeal should be struck out and the matter referred to the Arbitrator.
The balance of the submissions made relate to the reasons for extending the time to file Mr Quilao’s Notice of Opposition to the appeal.
DISCUSSION
Mr Quilao’s submissions that s 352 of the 1998 Act has not been satisfied are less than helpful. There are ten subsections to the section that deal with a number of requirements of the appeal including the mechanism to appeal, the monetary threshold, the time within which to file an appeal, that the right to appeal is limited to allegation of error of fact, law or discretion, that leave is required where the decision is interlocutory, and when fresh evidence may be adduced. Mr Quilao does not refer to any particular subsection and makes no submissions as to why s 352 has not been satisfied.
Ground two: alleged error in the exercise of discretion
The second ground of appeal is that the Arbitrator erred in the exercise of his discretion in failing to admit the report into evidence. It is appropriate to deal with this ground before dealing with the alleged error in the Arbitrator’s reasoning process (ground one) and the alleged error of fact asserted in ground three of the appeal.
The Arbitrator’s decision to refuse to admit the report is a discretionary decision, to be determined by what is fair and reasonable in the particular circumstances of each case. An appellate court must exercise caution in intervening in discretionary decisions made by the primary decision-maker.
In Micallef v ICI Australia Operations Pty Ltd,[8] Heydon JA explained (Sheller JA and Studdert AJA agreeing) that to succeed in an appeal against a discretionary decision, the appellant must demonstrate that the Arbitrator erred in exercising his discretion in that he or she:
“(a) made an error of legal principle;
(b) made a material error of fact;
(c) took into account some irrelevant matter;
(d) failed to take into account, or gave insufficient weight to, some relevant matter, or
(e) arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.”
[8] [2001] NSWCA 274 (Micallef), [45].
In Hamod v State of New South Wales[9] Beazley JA (as her Honour then was) made the following observations (citations omitted):
“The court at first instance must be free to exercise its discretion in matters of practice and procedure as the court considers necessary, having regard to the circumstances of the case. However, the discretion so vested in the first instance court is subject at all times to the primary obligation of ensuring a fair trial to the parties to the litigation.
The court’s concern with a fair trial is not divorced from the other considerations that the court has in the administration of justice. In particular, the concept of a fair trial is one that has regard to the interests of all parties to the suit. Nor, in this State, is it divorced from the court’s statutory obligation to ensure the just, quick and cheap resolution of the real issues in the dispute or proceedings.
For these reasons, before an appellate court will interfere with a discretionary judgment in a matter of practice and procedure, the question whether injustice flowed from the order appealed from will be a relevant and necessary consideration.”
[9] [2011] NSWCA 375, [134]–[136].
The documents that are sought to be relied on by a party in proceedings in the Commission are required to be filed and served in accordance with r 10.3 of the 2011 Rules. Where the document was not filed and served with the Application to Resolve a Dispute or the Reply to Application to Resolve a Dispute in accordance with r 10.3(1), pursuant to r 10.3(4), the Commission may admit the late documents, provided that the party seeking to rely on the document has complied with r 10.3(3) by having:
(a) served the document on the other parties as soon as practicable, and
(b) lodged the document no later than 5 working days before the telephone conference, or
(c) lodged the document no later than 5 working days before the arbitration.
If the party has failed to comply with r 10.3(3), the Commission may give the party leave to file the document if it is in the interests of justice to do so (r 10.3(4)).
In Iovanescu v McDermott,[10] the NSW Court of Appeal considered an application for extension of time pursuant to the District Court Rules 1973. After reviewing relevant authorities, Young CJ in Eq (as his Honour then was) said that:
“[it is] clear that prima facie the rules must be observed and that a person who seeks dispensation from them, particularly because of delay, must show good reason why such dispensation should be granted and must endeavour to explain away his or her apparent blameworthiness in connection with the total delay involved.”[11]
[10] [2004] NSWCA 106 (Iovanescu).
[11] Iovanescu, [5].
Parties must comply with the Commission’s Rules or give proper reasons for failure to do so.
Practice Direction No 9, issued by the Commission in accordance with r 18.1 of the 2011 Rules and effective from 30 October 2018, provides that the Commission, in a determination as to whether leave ought to be granted to have a late document admitted, will consider the following matters:
(a) if it is in the interests of justice to admit the document;
(b) the requirements of the workers compensation legislation and the 2011 Rules;
(c) the submissions of the parties, including the adequacy of the reasons for the delay;
(d) any prejudice arising from the granting or refusing of leave;
(e) any effect the granting of leave would have on the timely resolution of the dispute, and
(f) the objectives of the Commission.
The Practice Direction also directs that, where an application to have a document admitted is made during an arbitration, the Arbitrator will determine whether it ought to be admitted in accordance with the above principles.
The matters identified in the Practice Direction that are to be taken into account are matters that go to the proper exercise of the Arbitrator’s discretion. They are considerations that go to ensuring that regard is given to the interests of all parties to the suit, as well as to the objectives of the Commission.
They are consistent with a long line of Presidential authorities, including Tabassum, relied upon by Jeld-wen in these proceedings.[12]
[12] P & N Beverages Australia Pty Ltd v Hammoud [2008] NSWWCCPD 102; Oxford Art Supplies & Books Pty Limited v Gardiner (No 2) [2008] NSWWCCPD 122; Volkswagen Financial Services Australia Pty Ltd v Mokohar [2016] NSWWCCPD 13.
Jeld-wen’s legal representative gave no explanation as to why the report could not have been obtained prior to the first arbitration, which was the basis upon which the Arbitrator rejected the admission of the report. Although Jeld-wen had possession of the document on 18 October 2018, it did not attempt to file and serve the document until 24 October 2018.
The report was clearly directed to Jeld-wen’s legal representative. It reported an attempted observation of Mr Quilao’s activities on 19 August 2018, and observations on three occasions in August 2018. Further observations were made in October 2018, ceasing on 12 October 2018. As the report was sent directly to Jeld-wen’s legal representative, it could fairly be inferred that the surveillance was undertaken with the knowledge of the legal representative. A proficient legal practitioner would, as a matter of course, notify the investigators of the deadline by which this information was required. No explanation has been offered as to why Jeld-wen, or its legal representative, did not obtain the report or make enquiries as to the progress of the investigation prior to the first arbitration date. There is no evidence that either Jeld-wen or its legal representatives made any effort, at the time of the observations, to adduce evidence of the activities observed on the three days in August 2018, and on 2 October 2018, which were all well prior to the first arbitration date.
An unexplained failure to serve a document prior to an arbitration hearing is a significant factor militating against the discretion being exercised.[13] The extent and circumstances of the delay are powerful factors against the exercise of the discretion.
[13] Nelson Bay Pest Service Pty Limited v Morrison[2007] NSWWCCPD 135, [42].
Mr Quilao had concluded his case at the first arbitration, and Jeld-wen had partly completed its submissions. If the Arbitrator had admitted the document, procedural fairness would dictate that Mr Quilao be given an opportunity to provide an explanation, and also make submissions, in particular as to the weight to be afforded to the document. Such an eventuality would be contrary to the statutory objectives of the Commission to provide an efficient resolution of the dispute.
It is evident from the report that the surveillance DVD was also forwarded to Jeld-wen’s legal representatives at the same time as the report. Rule 14.1(2)(b) of the 2011 Rules deems the DVD to be a document for the purposes of r 10.3 and the report to be part of the DVD.
No attempt was made to have the DVD admitted. The evidentiary value of part of a document, that is a surveillance report without the DVD, where the report makes observations of what is contained in the DVD, is questionable.
The Arbitrator did weigh up the evidentiary value of the material when he remarked that the report might, or might not, lead to an inference that Mr Quilao had a capacity to work. Given that Jeld-wen only sought to have the report admitted, and not the DVD which provided the primary source of the evidence, the Arbitrator’s observations were fair. The Arbitrator also considered the prejudice to Mr Quilao by observing that Mr Quilao would have had the opportunity to make relevant submissions had the report been admitted at the appropriate time. In the context of Mr Quilao having closed his case, such a consideration was appropriate. The implied consideration of the fact that Mr Quilao had closed his case was also relevant to the objectives of the Commission that matters are to be dealt with in a timely and effective manner. These are all matters that the Arbitrator was obliged to take into account and were matters consistent with the Practice Direction.
Jeld-wen asserts that there was no prejudice to Mr Quilao because he was aware of his activities. Mr Quilao may have been aware of his activities, but he ought to have the opportunity to provide his account to the Arbitrator. Jeld-wen further asserts that any prejudice could have been cured because the matter was stood over to a later date. Such an eventuality had not become apparent until after the Arbitrator had determined that the report would not be admitted. It was open to Jeld-wen, when the further issue was raised and the matter was stood over, to renew its application to have the report admitted on the basis that any prejudice to Mr Quilao could be cured by the adjournment. No such application was made.
The delay in seeking to have the document admitted was clearly not the only matter considered by the Arbitrator.
Further, the Arbitrator did not acknowledge that the report “was not available until the day after [the] hearing.”[14] Rather, the Arbitrator only accepted that the report did not come into the possession of Jeld-wen’s legal representative until the day after the hearing.
[14] Jeld-wen’s submissions 7 January 2019, [5].
Jeld-wen alleges that the Arbitrator ought to have admitted the report in order to afford justice and fairness to the parties. The concept of fairness involves a weighing of the consequences to each party if the report was or was not admitted, in the context of the objectives of the Commission. The sole consequence to Jeld-wen is that it could not rely on a document that carries little weight in its argument that Mr Quilao’s credibility and capacity for work was impugned by that evidence. That consequence must be weighed against the matters that mitigated against the granting of leave, that is:
(a) the unsatisfactory explanation in relation to the failure to comply with r 10.3;
(b) the significant delay in obtaining the evidence;
(c) the lack of probative value of the report in the absence of the DVD, and
(d) the fact that Mr Quilao had closed his case.
Balancing all of those considerations, it cannot be said that the Arbitrator’s discretionary decision was so unreasonable or unjust that it warrants interference by the appellate jurisdiction of the Commission.[15]
[15] Micallef, [45].
If leave were granted to appeal the interlocutory decision, this ground of appeal would fail.
Ground one: adequacy of reasons
In ADCO Constructions Pty Ltd v Ferguson,[16] Deputy President Fleming set out the approach to be taken in assessing the adequacy of reasons. The case involved an application to file a Reply out of time. The Deputy President made the following observations:
“The standard by which the ‘adequacy’ of an Arbitrator’s reasons will be determined is relative to the nature and context of both the decision made and the decision-maker. The decision to refuse to allow the filing of a Reply, in the context of the Commission’s informal and expeditious process, does not require lengthy, detailed written reasons. The Commission is not a court (Fuentes v Standard Knitting Mill Pty Limited & Anor [2003] NSWCA 146) and is obliged to act according to equity and good conscience and the demands of the instant case. The purpose of giving reasons is to enable the parties to understand why the decision has been made.”[17]
[16] [2003] NSWWCCPD 21 (Ferguson).
[17] Ferguson, [31].
The extent and scope of a trial judge’s duty to give reasons depends upon the circumstances of the individual case.[18]
[18] Mifsud v Campbell (1991) 21 NSWLR 725, 728 per Samuels JA (with whom Clarke JA and Hope AJA agreed).
It is not necessary for an Arbitrator to give lengthy reasons. When considering the adequacy of the reasons, the decision must be read as a whole, and not with an eye attuned to find error.[19]
[19] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, 443.
The Arbitrator determined that the document should not be admitted because the document could have been obtained prior to the first arbitration, and there was no explanation as to why it was not.[20] Reading the decision as a whole, it is apparent that the Arbitrator considered the evidence sought to be adduced and the weight that could be afforded to that evidence. He also considered the fairness to Mr Quilao, in circumstances where Mr Quilao had closed his case. He further considered the stage of the proceedings at which the application was made, and it can be inferred that he was mindful of the objectives of the Commission in that the matter had already been the subject of two arbitration days. Of significance, he also took into account the lack of explanation, not for when the report was received, but for when it could have been obtained and the delay in seeking to have it admitted.
[20] T 3.27–3.30.
On the basis of those considerations, the Arbitrator rejected the admission of the report.
It must be borne in mind that the decision was interlocutory, and one of practice and procedure. It must also be noted that Jeld-wen’s submissions to the Arbitrator addressed only the time at which the document came into the legal representative’s possession and what the evidence would, in its view, establish. Jeld-wen did not refer to Tabassum, or address on the matters that ought to be considered that are identified by that authority and the Commission’s Practice Direction.
In my view, in the context of the nature of the decision, all of the Arbitrator’s considerations were sufficient to form a proper foundation for the Arbitrator’s ultimate determination.
If leave were granted to appeal the interlocutory decision, this ground of appeal would also fail.
Ground three: error of fact in determining that Jeld-wen had failed to give any explanation as to why the evidence was not admitted earlier
The Arbitrator accepted that the report did not come into the possession of Jeld-wen’s legal representative until the day after the first arbitration. The Arbitrator’s determination was not that Jeld-wen had failed to explain why the document was not admitted earlier. The Arbitrator said:
“No reason has been given as to why that evidence couldn’t have been obtained and served prior to the first hearing. Though I accept what Mr Macken says, it didn’t come into his hands till the day after, the fact is that the surveillance was conducted well before.”[21]
[21] T 3.25–29.
The Arbitrator’s conclusion was supported by the report itself, which identified the dates upon which the observations were made.
It follows that this ground of appeal would also fail if leave were granted to appeal the interlocutory decision.
CONCLUSION
As there is no merit to the appeal, leave to appeal the interlocutory decision made on 5 November 2015 is refused.
DECISION
Leave to appeal the interlocutory decision made on 5 November 2018 is refused.
The matter is remitted to the same Arbitrator for determination of the remaining issues.
Elizabeth Wood
DEPUTY PRESIDENT
18 March 2019
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