Karakurt v Vikson Australia Pty Ltd t/as South Coast Chicken Fillets and Smallgoods - [2018] NSWWCCPD 3

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Karakurt v Vikson Australia Pty Ltd t/as South Coast Chicken Fillets & Smallgoods [2018] NSWWCCPD 3
APPELLANT:	Ismail Karakurt
RESPONDENT:	Vikson Australia Pty Ltd t/as South Coast Chicken Fillets & Smallgoods
INSURER:	QBE Workers Compensation (NSW) Ltd as agent for icare NSW
FILE NUMBER:	A1-2976/17
ARBITRATOR:	Mr W Dalley
DATE OF ARBITRATOR’S DECISION:	25 September 2017
DATE OF APPEAL DECISION:	31 January 2018
SUBJECT MATTER OF DECISION:	Application for an extension of time; s 352(4) of the Workplace Injury Management and Workers Compensation Act1998; r 16.2(12) of the Workers Compensation Commission Rules 2011; application for an oral hearing on appeal – ss 354(6), 352(5) and 352(6) of the Workplace Injury Management and Workers Compensation Act1998; application of Hancock v Eastcoast Timbers Pty Ltd [2011] NSWCA 11; unchallenged and un-contradicted evidence – application of Holman v Holman (1984) 81 WN (NSW) 374, Hardy v Gillett [1976] VicRp 36; VR 392; procedure in the Commission – Aluminium Louvres & Ceilings Pty Ltd v Zheng [2006] NSWCA 34; application of the rule in Browne v Dunn (1894) 6 R 67 – New South Wales Police Force v Winter [2011] NSWCA 330; Quadi v The Reject Shop (Aust) Pty Ltd [2008] NSWWCCPD 3; Jones v Dunkel [1959] HCA 8; 101 CLR 298 inference
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:	Kells Lawyers
Respondent:	Sparke Helmore Lawyers
ORDERS MADE ON APPEAL:	1. The appellant’s application to extend time for the making of an appeal pursuant to r 16.2(12) of the Workers Compensation Commission Rules 2011 is refused.

INTRODUCTION

Mr Karakurt alleges injury to his low back on 30 June 2010 and claims the cost of proposed surgery recommended by Associate Professor Jaeger, neurosurgeon, in the form of lumbar L5/S1 nerve root decompression.
Vikson Australia Pty Ltd t/as South Coast Chicken Fillets & Smallgoods (Vikson) disputed the claim on the basis of s 4 (injury), s 9A (whether employment was a substantial contributing factor) and s 60 (the need for treatment) pursuant to the Workers Compensation Act 1987. Vikson also raised late issues in the Reply to the Application to Resolve a Dispute (ADR) - that Mr Karakurt had not notified his injury or made his claim within the prescribed time pursuant to ss 254 and 261 of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act). Leave was granted to rely on those defences at the teleconference before Arbitrator Dalley on 24 July 2017.
The Arbitrator determined that he was not satisfied on the balance of probabilities that Mr Karakurt suffered injury to his lumbar spine in the course of his employment. Having disposed of that issue, the Arbitrator did not determine the remaining issues.
Mr Karakurt appeals the Arbitrator’s finding that he was not satisfied Mr Karakurt had suffered the pleaded injury.

BACKGROUND

Mr Karakurt came to Australia from Turkey in 2006, at the age of 35.
In July 2006, he commenced work with Vikson at its chicken processing factory. Mr Karakurt’s position involved that of a chicken filleter, which required him to carry and weigh tubs of chicken of between 25–30 kilograms.
After an initial period of employment, he worked full time from 5.30 am to 3 or 4 pm but also worked on Saturdays until 2pm.
Mr Karakurt pleads that on 30 June 2010 he lifted a tub of chicken weighing 25–30 kilograms and had an immediate onset of sharp pain in his lower back. He also alleged that he was required to lift heavy loads “as part of the nature and conditions of his employment”[1].
[1] Application to Resolve a Dispute (ADR), Part 4.
The reference to the “nature and conditions” of his employment was abandoned at arbitration.
Mr Karakurt left his employment in September 2012 because of what appears to be a dispute in relation to industrial matters.
The claim for compensation was made on 3 July 2015.

ON THE PAPERS

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.”
Mr Karakurt seeks an oral hearing of the appeal in order to establish that he is a reliable witness. He submits that without the opportunity for him to give oral evidence, the “President will not be in a position to determine the appeal”. He requests a “full hearing”.[2]
[2] Mr Karakurt’s submissions, [12]–[13].
He further submits that “due to the issues of credibility and the demeanour of the appellant needing to be assessed as a witness, which ought to be taken into account in considering the issues to be determined then the appeal should be determined by way of hearing and not on the papers.”[3]
[3] Mr Karakurt’s submissions, Part A at [2].
Vikson requests the matter be dealt with on the papers. It refers to practice Direction No 6 - Appeal Against a Decision of the Commission Constituted by an Arbitrator (Practice Direction No 6) and says an appeal is not a review or re-hearing. Vikson further submits that “the Court hearing the appeal is in no better or worse position than the Arbitrator.”[4]
[4] Vikson’s submissions, [3] and [4].
Mr Karakurt submits that, in accordance with the Workers Compensation Commission Practice Direction 1 - Determination of Matters “On the Papers” Without a Conciliation Conference or Arbitration Hearing or Hearing on Appeal Against a Decision of the Commission Constituted by an Arbitrator (Practice Direction 1), an issue as to credit is one of the factors to be taken into account when considering a determination on the papers.
Mr Karakurt relies on Hancock v East Coast Timber Products Pty Ltd[5].
[5] [2011] NSWCA 11 (Hancock).
In Hancock, Tobias JA considered s 354(6) of the 1998 Act. His Honour said that the Commission (in that case the President) must satisfy itself during the course of consideration that it had sufficient information to be able to proceed to determine the matter on the papers. Justice Tobias said serious consideration should be given as to whether it is appropriate to determine the matter solely on the papers in matters where the credit of a witness is an issue.[6]
[6] Hancock, [112] and [139]–[141] (per Tobias JA).
The comments from Tobias JA were made in the context of a Presidential appeal wherein the matter proceeded ‘on the papers’. A determination was made that the evidence from a medical specialist could not be accepted because it offended the principle in Makita (Australia) Pty Ltd v Sprowles[7]. The Makita issue had not been raised either at arbitration or on Appeal and Mr Hancock had not had the opportunity to address on that point. The Court of Appeal upheld the appeal on the basis of lack of procedural fairness.
[7] [2001] NSWCA 305; 52 NSWLR 705 (Makita).
Mr Karakurt further relies on Fletcher International Exports Pty Ltd v Lott[8] asserting that that case supports his position. He relies on [44] of the decision. The paragraph recited by Mr Karakurt is an extract from Fletcher’s submissions made to the Court of Appeal, in that case alleging error by the Acting President in determining the matter ‘on the papers’. That argument (described as a “bootstraps” argument) was not accepted by the Court and the appeal was dismissed[9]. The submission is not helpful.
[8] [2010] NSWCA 63 (Fletcher).
[9] Fletcher, [45]–[51].
Mr Karakurt submits in Grounds 4 and 5 of this appeal that he has not had the opportunity to adduce oral evidence to respond to the issue of injury raised by Vikson. Essentially that is an allegation of lack of procedural fairness at arbitral level.
I have dealt with those grounds of appeal at [167]–[179] below. I have determined that Mr Karakurt had the opportunity to respond to the issues raised and adduced evidence in statement form from himself and two lay witnesses.
The basis upon which Mr Karakurt seeks a hearing is to afford him the opportunity to give oral evidence before me.
A decision as to whether a matter ought to be determined on the papers of course requires a consideration of all of the evidence and submissions and whether the parties have been afforded procedural fairness in order to address any issue arising from such evidence.
Mr Karakurt’s legal representatives made no application to adduce oral evidence at the arbitration and were content to have the matter determined on the basis of the documentary evidence and the submissions made on his behalf. The submissions of both parties were squarely put with reference to the issue of ‘injury’ and whether the evidence adduced in support of his case ought to be accepted in the context of the contemporaneous medical records of the Wollongong Medical Centre.
In my view, Mr Karakurt is now seeking to adduce further evidence in contravention of s 352(6) of the 1998 Act (without any application being made in accordance with that section) and is attempting to have this appeal conducted as a re-hearing in contravention of s 352(5) of the 1998 Act. To allow it may expose Vikson to a lack of procedural fairness.
Arbitrations are not a dress rehearsal.[10] A Presidential appeal is not a re-hearing.[11]
[10] Dick’s Deisel Pty Ltd v Caddaye [2015] NSWCCPD 68, [69].
[11] The 1998 Act, s 352(5).
Section 352(6) of the 1998 Act provides:
“Evidence that is …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...without 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.”
Mr Karakurt is seeking to have an adjudication of his reliability as a witness and his demeanour on the basis of oral testimony. He did not make any such application to adduce oral evidence before the Arbitrator as part of his case. He could have done so. A party must live with the consequences of its own forensic choices.[12]
[12] Caruana v Darouti [2014] NSWCA 85.
Determination of the appeal ‘on the papers’ would not be procedurally unfair to Mr Karakurt. For the reasons given at [19] and [20] above, Hancock is not on point and the submissions in Fletcher do not assist Mr Karakurt.
Having regard to all of the above, 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 to consider the merits of the appeal ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirement as to quantum has been met pursuant to s 352(3) of the 1998 Act.
The appeal was not filed within the time prescribed by s 352(4) of the 1998 Act, that is, within 28 days of the decision being appealed against. The 28 days commences to run from the day after the issue of the Certificate of Determination.[13] The Certificate of Determination was issued on 25 September 2017. The last day for filing the appeal was 23 October 2017. The Appeal was filed on 31 October 2017.
[13] Bielecki v Rianthelle Pty Ltd [2008] NSWWCCPD 53, [43]; Winter v New South Wales Police Force [2010] NSWWCCPD 121, [20].
Rule 16.2(12) of the Workers Compensation Commission Rule 2011 (2011 Rules) provides:
“The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
Mr Karakurt provides a chronology of events with respect to filing of the appeal.
The Certificate of Determination, which was received on 25 September 2017, was forwarded to his counsel on 27 September, and counsel’s advice on prospects of appeal was sought on 4 and 12 October 2017. There was a teleconference arranged for either 16 or 17 October to discuss an appeal. It is not clear from the submissions as to whether that eventuated, however, in a telephone conference on 18 October 2017 “it was decided there are reasonable prospects to appeal the Arbitrator’s decision”[14].
[14] Mr Karakurt’s submissions, Part A 2.1 at [7].
Further approaches to counsel were made by Mr Karakurt’s legal representative, Mr Potts, on 20 October 2017 and on 23 October 2017 (the last day to appeal). As submissions had not been received, on 23 October 2017, Mr Potts filed the appeal without submissions. A copy was sent to Vikson’s legal representatives.
On 26 October 2017, that appeal was rejected for failure to comply with the procedural requirements of the workers compensation legislation and Practice Direction No 6.
The appeal submissions were received by Mr Potts on 25 October 2017. On that day Mr Potts emailed “the annexures to the application in full, duly executed in accordance with the practice directions.”[15]
[15] Mr Karakurt’s submissions, Part A 2.1 at [16].
On 30 October 2017, Mr Potts received the notice from the Commission rejecting the appeal filed on 23 October 2017.
The appeal was re-filed on 31 October 2017.
Mr Karakurt submits that:
(a)    he was not “at fault” with respect to the late lodgment;
(b)    it is in the interests of justice that the appeal be considered;
(c)    the short delay would not cause Vikson any “injustice”;
(d)    Vikson was on notice of the intention to appeal within the timeframe;
(e)    an intention was shown to “honour” Mr Karakurt’s rights to appeal, and
(f)    the Appeal relates to questions of law with respect to the burden of proof in civil matters, consideration of which would benefit the jurisdiction.
Mr Karakurt further submits that losing the right to appeal would cause substantial injustice as the Arbitrator’s decision puts an end to Mr Karakurt’s compensation entitlements. Also, he is incapacitated for employment and in desperate need of surgery.
In Reply to the Notice of Opposition, Mr Karakurt further submits that:
(a)    the time limit imposed is intended to ensure there are not lengthy delays in filing an appeal;
(b)    the time limit should not stand in the path of justice, and
(c)    the power to extend time is provided for to ensure justice is done.
In support of his submissions, Mr Karakurt relies on Hall v The Nominal Defendant[16] as authority for those principles.
[16] [1966] HCA 36; 117 CLR 423 (Hall), 435 (per Barwick CJ).
Vikson submits that the lack of due diligence does not constitute “exceptional circumstances”.

Consideration

Rule 16.2(12) of the 2011 Rules requires me to consider whether “exceptional circumstances” exist. Whether there are exceptional circumstances and whether the party seeking an extension can show demonstrable or substantial injustice would occur if leave were not granted is “a composite expression in the rule to be dealt with within jurisdiction.”[17]
[17] Bryce v Corrective Services [2009] NSWCA 188, [8]–[10] (per Allsop P (Beazley and Giles JJA agreeing).
Exceptional circumstances are circumstances that are out of the ordinary course or unusual, special, or uncommon.[18] The appeal was rejected by the Commission because it failed to comply with Practice Direction No 6. The reasons for the failure to comply are explained by Mr Karakurt’s submissions, that is, because of the dilatory response by Mr Karakurt’s counsel in providing the requisite submissions (described by Vikson as “lack of due diligence”).
[18] Yacoub v Pilkington (Australia) Ltd 2000 NSWCA 290, at [66] (per Campbell JA).
Such failure to comply with the legislative requirements for filing an appeal is not uncommon or rare, and regularly occurs. It does not constitute exceptional circumstances.[19]
[19] Vaughan v Secretary, Department of Education [2018] NSWWCCPD 1, [27].
As the reasons for delay do not constitute “exceptional circumstances”, Mr Karakurt must show that a demonstrable or substantial injustice would occur if leave to extend time for the making of the appeal was not granted.
In Gallo v Dawson[20] the High Court set out the matters that ought to be taken in to account when considering an application to have time extended. Justice McHugh said (excluding references):
“The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties. ... This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time. ... When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal. ... It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has ‘a vested right to retain the judgment’ unless the application is granted. ... It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice.”[21]
[20] [1990] HCA 30; 64 ALJR 458 (Gallo).
[21] Gallo, [2].
Accordingly, the history of the matter is a factor which I am required to take into account in determining whether leave should be granted.
Mr Karakurt has demonstrated a history of delay in bringing his claim. He first claimed compensation for the alleged injury in July 2015, five years after the injury and almost three years since he left his employment.
The insurer disputed liability in a s 74 notice dated 7 October 2015 on the basis of injury (s 4) and s 9A.
Through his legal representatives, Mr Karakurt filed an ARD on 16 June 2017. He relies on WorkCover certificates commencing on 1 February 2016 and reports that were available to his former lawyers (Hansons Lawyers) dated 27 February 2016 and to his current legal representatives in October 2016. Annexed to the ARD were some (but not a complete set of) the Wollongong Medical Centre’s clinical notes dating from 15 June 2015.
In response to the ARD, Vikson filed a Reply on 10 July 2017. Annexed to the Reply were the clinical notes of the Wollongong Medical Centre dating from 18 November 2008.
At the arbitration, Mr Karakurt tendered a supplementary statement and statements from his daughter and fiancée all dated 31 August 2017, less than a week before the Arbitration. The statements were said to be in answer to the absence of complaints of and treatment for the injury in the clinical records filed by Vikson on 10 July 2017, some seven weeks earlier.[22] Those statements were not filed in accordance with r 10.3(3)(c) of the 2011 Rules.
[22] Transcript of Proceedings, Karakurt v Vikson Australia Pty Ltd t/as South Coast Chicken Fillets & Smallgoods (WCC, [2017] NSWWCC 229, Arbitrator Dalley, 25 September 2017), T 3.10-20.
I am also required to take account of Vikson’s vested right to retain judgment. Mr Karakurt notified Vikson on 25 September 2017 of his intention to appeal and served a copy of the appeal form (without identified grounds or submissions) on the last day for filing of the appeal. In its submissions, Vikson however does not identify any prejudice to it flowing from the late filing of the appeal.
The potential prospect of success of the appeal is a further matter that must be taken into account in consideration of whether a denial to extend time would cause substantial injustice. An assessment of the consequences to the parties will be very much dependent upon an evaluation of that prospect. If the matter has no prospect of success on appeal then the consequences to each party will be no different to the current status quo. On the other hand, if the matter has strong prospects to refuse to grant leave to appeal would be more likely to create an injustice to Mr Karakurt, with no identified prejudice to Vikson.

I have discussed the prospects of success of this appeal below. I have found against the merits of the appeal for the reasons set out therein.
Mr Karakurt also asserts that the appeal involves questions of law in relation to the appropriate burden of proof in civil liability matters. The acceptance or rejection of evidence in the absence of cross-examination in this jurisdiction is well settled by the authorities discussed below. The decision by the Arbitrator was a factual decision and does not raise any question of law.
The complaint that the Arbitrator has erred in not finding a Jones v Dunkel[23] inference in the absence of evidence from Mr Karakurt’s supervisor is a discretionary matter and does not constitute an error of law.
[23] [1959] HCA 8; 101 CLR 198 (Jones v Dunkel).
Taking into consideration all of the above matters, I decline to extend the time to appeal. My decision does not offend the principles relied on in Hall.

THE EVIDENCE

Mr Karakurt relied on the medical opinion of his treating specialist, Associate Professor Jaeger contained in three reports dated 22 December 2015, 9 February 2016 and 17 February 2016.[24]
[24] ARD, pp 7–12.
Mr Karakurt was referred to Associate Professor Jaeger by his treating general practitioner Dr Lawrence. The report of 22 December 2015 records the history of the alleged injury which is largely consistent with Mr Karakurt’s evidence, save that it was recorded by Associate Professor Jaeger that Vikson would not provide Mr Karakurt with suitable duties.
Associate Professor Jaeger reviewed the MRI scan of August 2015 and confirmed the scan disclosed severe left L5/S1 foraminal stenosis as the underlying cause of his symptoms.
Associate Professor Jaeger found that it was “reasonable to assume that all of his current problems are related to the work injury in 2010, particularly because he did not have any lower back or sciatic problems before and the heavy nature of his work duties at that time.”[25]
[25] ARD, p 7.
The report of 9 February 2016 detailed the further treatment and advice provided to Mr Karakurt.
In the third report, Associate Professor Jaeger responded to a request from Mr Karakurt’s former legal representative to provide his opinion. He confirmed the history, treatment regime, diagnosis and prognosis. With respect to causation, Associate Professor Jaeger considered that on basis of the heavy lifting required and the lack of any previous complaints, “it was reasonable to assume …that the heavy work he was performing and has been doing prior to the date of injury is a substantial contributing factor to his pain and that lifting heavy boxes repetitively … is a sufficient mechanism to cause this type of injury…”[26]
[26] ARD, p 11.
Mr Karakurt also relied on medico-legal opinions of Dr Bodel dated 25 October 2016[27] and Dr Evans dated 4 August 2015[28].
[27] ARD, pp 13–19.
[28] ARD, pp 1–6.
Doctor Bodel recorded the history provided of the heavy nature of the work performed and the frank incident alleged to have occurred on 30 June 2010, noting Mr Karakurt seemed to recall the incident was earlier in the year. Dr Bodel was provided with a history of an additional injury, on this occasion suffering severe pain when removing a tub of chicken after it was weighed. Dr Bodel attributed Mr Karakurt’s symptoms to injury to the L5/S1 disc “in the incident that occurred at work in 2010.”[29]
[29] ARD, p 18.
Doctor Evans was qualified by the insurer to provide his opinion. He took a history mainly consistent with the history relied upon in these proceedings. On the basis of the history provided, Dr Evans accepted that the symptoms complained of were as a result of the injury of 30 June 2010.
The documents attached to the ARD also include the relevant radiological investigations[30] performed (the earliest of which is a CT scan dated 16 May 2014) and the clinical notes of various general practitioners at the Wollongong Medical Centre spanning the period from 15 June 2015 to 21 June 2016.[31] Those clinical notes are discussed below.
[30] ARD, pp 20–23.
[31] ARD, pp 25–50.
Mr Karakurt relied on his statement dated 15 May 2017.[32]
[32] ARD, pp 81–87.
In that statement, Mr Karakurt described the duties he performed and the incident in 2010, which he said was in early to mid-2010. He said he reported the incident and had a conversation with his supervisor “Loui”. He rested for a while and then went home. He returned to work the next day for a few hours but went home again in pain. He alleges he had at least 40 days of sick leave because of his continuing back pain between then and when his employment ceased in 2012.
Mr Karakurt said despite continuing pain, he did not tell any doctors because he was afraid he would lose his job and his English was not very good. He said he asked for suitable duties, partly because of his back but that request was refused.
Mr Karakurt has not worked since ceasing with Vikson.
Mr Karakurt tendered a supplementary statement, dated 31 August 2017, at the arbitration which was objected to by Vikson. Parts of that statement were admitted. The statement was in answer to the clinical note entry of Dr Talic on 5 December 2012 wherein the doctor recorded “sometimes LBP when playing football. Never seen a doctor …Nil injury - last 1 week increasing pain ...”[33]
[33] Application to Admit Late Documents dated 31 August 2017 (AALD), p 3 at [4].
Mr Karakurt stated that at the time of the consultation his English was very poor and he did not understand the word “injury”. He recalls the doctor asked him about work, which he took to mean a question as to whether he was working, to which he replied he was not. He denied ever having an injury playing soccer.
At the arbitration, Mr Karakurt also tendered statements from his daughter Tugba Karakurt and his fiancée, Esin Kahraman.
Ms Karakurt stated that on one occasion in 2010 her father “came home and was in pain. I asked him what was wrong. [He] said he hurt his back while carrying a tub of chicken at work” [34].
[34] AALD, p 2.
Ms Karakurt said that she bought Nurofen and Dencorub at Mr Karakurt’s request. She said that after that, her father regularly took Nurofen and after work would sit in a hot bath for 30 minutes and wrap a hot towel around his back. She said she saw this continue until she moved out of the house in 2010.
Only [1]–[3] and [5]–[9] of Ms Kahraman’s statement was admitted. She said[35] she had known Mr Karakurt since the end of 2010 and they formed a relationship in January 2011. She did not speak to him about what his job entailed. She was aware he had back pain and he would lay in a bath after work. She did not ask him about it because the Turkish custom was not to discuss men’s disabilities. She did however encourage him to see a doctor about a problem he was having in relation to hands in the middle of 2011.
[35] AALD, p 1.
Vikson relied upon a second report from Dr Evans, dated 6 October 2015, wherein the doctor reviewed a letter from the insurer and further material (not identified) and said:
“There is no clear evidence here of a work injury to his back. All the changes in the CT scan of 2014 and the MRI scan of 2015 could be constitutional and degenerative and he appears not to have claimed a work injury while working.
I agree also that the Duputreyns disease is not work related.”[36]
[36] Reply to ARD (Reply), p 7.
Vikson also relied on additional clinical notes from the Wollongong Medical Centre dating from 2008[37] and a statement dated 10 August 2015[38] from the former principal of Vikson, Raymond Sonnieitner.
[37] Reply, pp 18–39.
[38] Reply, pp 62–65.
The clinical notes are discussed below.
Mr Sonnieitner said that he owned and purchased Vikson in 2004 and ran the business from then until January 2013 when Ljupco Corbevski (Lou) purchased the business. Lou had been the production manager and worked with Mr Karakurt.
Mr Sonnieitner recalled that shortly after Mr Karakurt started he complained of sore hands. He said he asked Mr Karakurt whether he wanted to do the type of work, and that he continued to work with no further complaints.
Mr Sonnieitner said he cannot recall Mr Karakurt complaining of being hurt, or of anyone saying he had hurt himself.
Mr Sonnieitner said Mr Karakurt was a satisfactory worker. He recalled a complaint made by Mr Karakurt’s girlfriend after Mr Karakurt left the employ. The conversation was said to concern the severance pay paid to Mr Karakurt and a request for a lump sum to return to Turkey. Mr Sonnieitner said he heard nothing further after that conversation.
Vikson adduced no evidence from “Loui” who it seems is Mr Corbevski, now the current owner of Vikson.

THE ARBITRATOR’S REASONS

The Arbitrator’s reasons included a detailed summary of the lay evidence contained in both of the statements by Mr Karakurt and the statements of Ms Karakurt, Ms Kahraman and Mr Sonnleiter.
The Arbitrator reviewed the substantial number of pertinent entries in the Wollongong Medical Centre clinical notes dating from 2008 to 25 January 2016. The Arbitrator noted that in a medical clearance assessment in 2008 Mr Karakurt appeared to be in good physical health with no medical problems.
The Arbitrator referred to entries in those notes in 2011 concerning problems Mr Karakurt was experiencing with his hands, which Mr Karakurt related to “bacteria from chicken”. The Arbitrator recorded a referral to Dr Scougall, hand specialist.
The Arbitrator further noted reference to right ankle symptoms in March 2012, with an interpreter present at the consultation, He also noted an entry on 5 December 2012 with complaint of low back pain when playing football “Nil injury” and “increasing pain over the last week” recorded. Further attendances were noted by the Arbitrator of general health problems in 2014, including requiring an ankle brace if wanting to play football and 6 days of low back pain on 1 May 2014 with a history of low back pain 5 months previously for a “few days”.
The Arbitrator recorded the first entry containing a history wherein Mr Karakurt attributes the low back symptoms to his employment with Vikson. That history appeared in the notes at consultation with Dr Lawrence taken in the presence of an interpreter on 16 June 2015. The history provided was consistent with the mechanism of injury relied upon in these proceedings.
The Arbitrator reviewed the reports and opinions of Dr Evans, Associate Professor Jaeger and Dr Bodel. His summary was consistent with that evidence.
The Arbitrator also made a summary of the submissions made at arbitration by counsel for Mr Karakurt and counsel for Vikson.
The Arbitrator recorded his findings at [74]–[90] of the Certificate of Determination dated 25 September 2017.
In his determination, the Arbitrator weighed the evidence of Mr Karakurt against the contemporaneous records and said he found it difficult to reconcile the complaints of significant symptoms (including 40 days sick leave) against the lack of treatment provided to the low back.
The Arbitrator said he found it difficult to accept that Mr Karakurt’s lack of English skills prevented him from complaining of such significant symptoms to the doctors when he had available to him the assistance of his fiancée and had attended and reported other symptoms on a regular basis.
Further, the Arbitrator placed no “substantial weight” on the statements of Ms Kahraman and Ms Karakurt as “[b]oth are recalling events that occurred more than six years ago and might be expected to be relying on more recent conversations with Mr Karakurt for their recollection”.[39]
[39] Certificate of Determination (Reasons), [82].
With respect to any inference arising in favour of Mr Karakurt in the absence of evidence from Mr Corbevski (as submitted by Mr Karakurt’s counsel), the Arbitrator determined that he could not find a favourable inference because there was no evidence that the alleged injury was recorded and so any statement would only be a recollection of what was or was not reported over six years ago.
The Arbitrator did not accept the medical opinions as to causation. He rejected them on the basis that they were reliant upon the history of injury which the Arbitrator determined was inconsistent with the contemporaneous material and not made out.
The Arbitrator further noted the entry in the clinical notes on 5 December 2012 excluded a work related injury. He found that entry to be significantly inconsistent with the assertion of two years of continuous symptoms causing in the order of 40 days of incapacity for work.
The Arbitrator referred to the decision in Nominal Defendant v Clancy[40] and the requirement to treat with caution entries in clinical notes. He reasoned that Mr Karakurt did not dispute the entries and merely explains that those entries (and absence of entries) were as a result of his language difficulties and his fear of losing employment.
[40] [2007] NSWCA 349.
The Arbitrator determined that after carefully weighing the whole of the evidence he could not be satisfied on the balance of probabilities that Mr Karakurt suffered injury in the course of his employment. He said the evidence did not permit an “actual persuasion”[41].
[41] Reasons, [91].
The Certificate of Determination issued on 25 September 2017 records:
“1. The Application to Resolve a Dispute is amended by deleting the words ‘We note the worker was routinely required to repeatedly lift heavy loads as part of the nature and conditions of his employ’ from Part 4.
2. Award for the Respondent.”

GROUNDS OF APPEAL

Mr Karakurt claims error by the Arbitrator and alleges the following seven grounds of appeal:
(a)    Ground 1: “In failing to accept the un-contradicted, corroborated and unchallenged evidence of the applicant that he suffered an injury to his lumbar spine on 30 June 2010”;
(b)    Ground 2: “In not accepting the un-contradicted evidence of the Applicant, the Arbitrator failed to find that the evidence of the Applicant was inherently improbable, such that no reasonable person could accept such evidence, or that such evidence was unreasonable or unlikely”;
(c)    Ground 3: “In failing to be bound to accept the un-contradicted evidence of the Applicant when such evidence was inherently probable and not unreasonable or improbable and was not contradicted by any other evidence”;
(d)    Ground 4: “In failing to accept the unchallenged evidence of the Applicant when the Respondent failed to require the Applicant for cross examination in order to allow the Applicant to respond to the Respondent’s allegations that the Applicant did not suffer an injury to his lumbar spine on 30 June 2010, to enable the Arbitrator to assess the reaction of the Applicant to those challenges”;
(e)    Ground 5: “In failing to make findings on the issue of the Applicant’s credibility, and to give reasons based on observations or views about his demeanour while giving evidence (which was not possible due to the fact that the Applicant was not required for cross examination) nor give reasons founded upon careful reference to the evidence, nor to give reasons founded of matters and circumstances which would lead the Arbitrator not to rely on the Applicant’s evidence”;
(f)    Ground [6, wrongly numbered 5]: “In failing to draw an inference pursuant to the rule in Jones v Dunkel that the uncalled evidence of the supervisor Ljupco (“Loui”) Corbevski would not have assisted the Respondent”, and
(g)    Ground [7, wrongly numbered 6]: “In placing too much emphasis on the failure of the Applicant to report his symptoms to his treating practitioners when the evidence of the Applicant as to reason for not reporting such symptoms was un-contradicted, corroborated and unchallenged”.

SUBMISSIONS

Grounds 1, 2, and 3

With respect to the first three grounds of appeal, Mr Karakurt relies upon the principles enunciated in a number of authorities with respect to the acceptance of un-contradicted evidence.
Mr Karakurt submits that Holman v Holman[42] is authority to say that where there is un-contradicted sworn evidence the Court is bound to accept it, “unless it is so incredible that no reasonable man could accept it”[43].
[42] (1984) 81WN (NSW) 374 (Holman).
[43] Mr Karakurt’s submissions, [14].
Mr Karakurt further refers to Hardy v Gillett[44]; Repatriation Commission v Perrot[45]; Repatriation Commission v Reid[46] and Suters v Australian Postal Corporation[47] with respect to uncorroborated evidence.
[44] [1976] VicRp 36; VR 392 (Hardy).
[45] [1984] FCA 139; 53 ALR 690 (Perrot).
[46] [1984] FCA 145; 54 ALR 157 (Reid).
[47] (1992) 28 ALD 320 (Suters).
Mr Karakurt quotes from Anderson J of the Victorian Supreme Court in Hardy as follows:
“Where un-contradicted evidence which is inherently reasonable, probable and conclusive of the matter, has been given, the court is bound to accept it.”
Mr Karakurt further quotes from Kirby J in Perrot at [33] wherein Kirby J referred to a submission based on the common law as enunciated in the above authorities. Mr Karakurt also submits that Wilcox J in Reid accepted that a failure by the Administrative Appeals Tribunal to give effect to the above common law principle may constitute an error of law. Mr Karakurt further submits that Ryan J adopted a similar approach in Suters.

Ground 4

Ground 4 of the appeal alleges an error of law in that the Arbitrator’s approach was “wrong, unreasonable, or perverse in rejecting unchallenged evidence…being evidence which was not inherently incredible or improbable.”[48]
[48] Mr Karakurt’s submissions, [19].
Mr Karakurt’s submits that the rule in Browne v Dunn[49] has to be taken into account.
[49] (1983) 6 R 67.
Mr Karakurt also submits that Precision Plastics Pty Ltd v Demir[50] is further authority for the proposition that evidence which is not inherently incredible and is unchallenged ought to be accepted. Mr Karakurt concedes that Precision Plastics is also authority for the proposition that evidence may be rejected if it is contradicted by evidence of established facts or the particular circumstances point to its rejection.
[50] [1975] HCA 27; 132 CLR 362 (Precision Plastics), [370]-[371].
Mr Karakurt says that the proper approach to unchallenged evidence is explained in the decision of Weissensteiner v The Queen[51] as follows:
“[I]t has never really been doubted that when a party to litigation fails to accept an opportunity to place before the court evidence of facts within his or her knowledge which, if they exist at all, would explain or contradict the evidence against that party, the court may more readily accept that evidence. It is not just because un-contradicted evidence is easier or safer to accept than contradicted evidence. That is almost a truism. It is because doubts about the reliability of witnesses or about the inferences to be drawn from the evidence may be more readily discounted in the absence of contradictory evidence from a party who might be expected to give or call it.”[52]
[51] [1993] HCA 65; 178 CLR 217(Weissensteiner).
[52] Weissensteiner, [227] (per Mason CJ, Deane and Dawson JJ).
Mr Karakurt submits that in order for the Arbitrator to make the determination referred to at [101] above, the Arbitrator was required to explain and justify his finding. Further, it was necessary for those witnesses to be cross examined and in accordance with the principle in Jones v Dunkel, the witnesses ought to have been given the opportunity to rebut the proposition that their evidence was unreliable.
Mr Karakurt also submits that the Arbitrator erred in law in not accepting the evidence of the daughter and the fiancée as that evidence was not “glaringly or inherently improbable.”[53]
[53] Mr Karakurt’s submissions, [27].

Ground 5

Mr Karakurt submits that the Arbitrator did not fully or helpfully expose his process of reasoning. He maintains that the Arbitrator did not provide sufficient explanation as to why he did not accept his evidence.
Mr Kararkurt says the Arbitrator ought to have had the opportunity to observe him, Ms Karakurt and Ms Kathraham give evidence.

Mr Karakurt quotes Hancock v East Coast Timber Products Pty Ltd wherein Tobias JA observed that before making any finding of adverse credit, the party should be given the opportunity to answer or provide an explanation.[54]
[54] Hancock, [132].

Ground 6

Mr Karakurt submits that there is an unexplained failure to adduce evidence from Mr Corbevski which gives rise to a Jones v Dunkel inference, making the inference open that the un-contradicted evidence is more probable.
Mr Karakurt further submits that on the basis of the above authorities, un-contradicted evidence is safer and easier to accept than contradicted evidence. He maintains that the evidence of Mr Corbevski is crucial and the only way the Arbitrator could determine that his recollection of events may have been challenged would have been for Mr Corbevski to give evidence.
Mr Karakurt maintains that by not adducing that evidence, Vikson is “deemed” to have accepted that evidence and is to be treated as “established” before the Arbitrator.

Ground 7

With respect to this ground, Mr Karakurt makes reference to [81] – [85] of the Arbitrator’s decision.
Mr Karakurt challenges the Arbitrator’s reasons that it was more difficult to understand why the injury was not raised in medical consultations than why Mr Karakurt would tolerate such a substantial condition without seeking help to alleviate his symptoms.
Mr Karakurt again maintains that there was no challenge to his evidence or cross examination. He submits that the Arbitrator must find Mr Karakurt’s evidence is not to be accepted on issues of credit before concluding his evidence is not accepted. The “mere fact” that it was difficult to understand is not a ground for rejecting the evidence.
Mr Karakurt further submits that the Arbitrator erred in failing to find that the evidence was not inherently reasonable or probable.

Vikson’s submissions

With respect to grounds 1–3, Vikson submits that the onus of proof lies with Mr Karakurt.
It further submits that the Arbitrator closely examined the medical evidence (including the absence of complaint of a work injury, noting that the lack of complaint was “common ground” between the parties).
Vikson identifies those parts of the Certificate of Determination where the Arbitrator has noted the failure by Mr Karakurt to provide a history to the doctors and Mr Karakurt’s claim that he was ignorant of his rights and feared losing employment.
Vikson refers to the inconsistencies with that evidence (described as major) identified by the Arbitrator, namely the alleged extensive sick leave taken because of his back and the complaint to the doctors while still in employment of a perceived work related injury to his hands, leg and arm.
As to ground 4, Vikson further submits that it was not necessary to cross examine as the medical evidence totally contradicted Mr Karakurt’s assertions. Further, the onus was on Mr Karakurt to tender medical evidence to explain the lack of history.
With respect to Ground 5, Vikson asserts that the Arbitrator did not fail to give reasons and the reasons were founded on a careful consideration of the evidence.
In relation to Ground 6, Vikson submits that the Arbitrator correctly dealt with what was required of him at paragraph [81] of the decision, that is, by acknowledging the evidence that Mr Karakurt reported his injury to Mr Gobevski was un-contradicted but that he would not draw the inference suggested by Mr Karakurt and gave his reasons for not doing so.
As to Ground 7, Vikson repeats its submissions as to the reasoning of the Arbitrator and the inconsistencies in Mr Karakurt’s case.
In summary, Vikson submits that the Arbitrator did not fall into error and that it was open to him on the evidence to find that the evidence did not permit a sense of “actual persuasion”.

Mr Karakurt’s submissions in Reply

In Reply to the Notice of Opposition, Mr Karakurt again submits with respect to the grounds of appeal that a full explanation for failure to complain to his doctors was given which was corroborated not challenged, and not contradicted by any other evidence.
Mr Karakurt asserts that a failure to complain or seek treatment is not a reason to “solely find no injury took place”, that it does not prove the injury did not take place, but is a “corroborative fact.” He further asserts the evidence of the Ms Karakurt and Ms Kahraman corroborates that he suffered injury and that evidence is no different to having complained to a doctor.[55]
[55] Mr Karakurt’s submissions in Reply to the Notice of Opposition, [4].
Mr Karakurt further submits that the contemporaneous medical evidence (dealt with by the Arbitrator at [37] to [63] of his Reasons) is only relevant to corroborate Mr Karakurt’s evidence as to “those events”. He says that the use of such evidence was “not relevant as to whether the events took place as pleaded by the Appellant.” He also says it may be relevant to a diagnosis of the injury but completely irrelevant to whether the injury took place.[56]
[56] Mr Karakurt’s submissions in Reply to the Opposition, [6].
In his final submission, Mr Karakurt maintains that it is unclear from a reading of [81] of the Reasons whether the Arbitrator accepted his evidence that he reported his injury and that the Arbitrator failed to give sufficient reasons with respect to Ground 5 of the appeal.

DISCUSSION

Grounds of Appeal

Mr Karakurt’s grounds of appeal are somewhat repetitive and unnecessarily verbose. In simple terms, his complaints are that:
(a)    his evidence was “un-contradicted, corroborated and unchallenged” and the Arbitrator was bound to afford it greater weight and accept it;
(b)    if his un-contradicted evidence was to be rejected the Arbitrator was required to find that it was “inherently improbable”, unreasonable or unlikely (Holman, Hardy) and provide reasons for doing so;
(c)    Mr Karakurt was not given the opportunity to respond to the late issue raised by Vikson;
(d)    Mr Karakurt as well as Ms Karakurt and Ms Kahraman, were not cross examined; so that evidence was unchallenged and ought to have been accepted (applying Browne v Dunn);
(e)    the Arbitrator failed to make findings on “credit” and observations of his demeanour;
(f)    the Arbitrator failed to give reasons, based on the evidence, for not accepting the lay witnesses, and
(g)    in the absence of evidence from Mr Corbevski, an inference should have been drawn that such evidence would not have assisted Vikson (Jones v Dunkel).

Was the evidence “un-contradicted, corroborated and unchallenged”?

The evidence contained in the clinical notes discloses that Mr Karakurt did not seek any treatment for his back until December 2012, when he complained of low back pain while playing football. This entry was well after Mr Karakurt had ceased employment with Vikson.
Mr Karakurt had previously attended the clinic for treatment with respect to a variety of matters, including a hand condition in 2011, prior to ceasing employment. It is very relevant that Mr Karakurt complained of those symptoms (contrary to his alleged “fear”) and attributed the condition to his employment, again contrary to his claimed ignorance.
As the Arbitrator correctly identified, on many occasions Mr Karakurt attended for other treatment (sometimes with the benefit of an interpreter) and could have asked for advice or treatment with respect to his low back, but did not do so. The Arbitrator considered those facts to be in stark contrast to the statement evidence of Mr Karakurt and his fiancée of the severity and frequency of the back pain.
The Arbitrator reasoned Mr Karakurt’s reliance on a lack of English was also inconsistent with his ability to communicate other complaints to his doctors and that at some consultations he had the assistance of an interpreter.
The Arbitrator admitted only [1] – [3] and [5] – [9] of the statement from the fiancée, Ms Kahraman[57]. At its highest, Ms Kahraman statement goes only to observations post January 2011, when they first commenced a relationship. She does not corroborate the pleaded injury. Her evidence simply confirms that from some unspecified time she observed him to take hot baths and over the counter medication after work.
[57] Statement Ms Kahraman dated 31 August 2017.
According to Mr Karakurt, Ms Kahraman assisted him with the preparation of his statement because of his lack of English skills.[58] As noted by the Arbitrator, Ms Kahraman attended at least one medical consultation with Mr Karakurt on a date well after the date of the alleged injury.
[58] Statement of Mr Karakurt dated 15 May 2017, [8].
The evidence of Mr Karakurt’s daughter Ms Karakurt is that at some time in 2010 her father told her he had hurt his back “carrying chicken”. The statement was made more than seven years after the injury. The activity does not describe the pleaded injury with any precision or the two injury descriptions recorded by Dr Bodel.
Vikson’s response to Mr Karakurt’s claim of injury challenged Mr Karakurt’s allegations and evidence from the outset. The only corroboration came from the two witness statements above which were of limited probative value. The significant inconsistencies derived from the clinical notes cast real doubts on the accuracy of the assertions in the lay evidence, not only as to injury and its severity but also as to the reasons put forward by Mr Karakurt as to why he did not complain to, or seek treatment from, his doctors.
Mr Karakurt’s evidence was clearly contradicted by the contemporaneous treating doctors’ clinical notes. There was only limited corroboration from the two lay witnesses which did not go so far as to support the time and mechanism of injury described by Mr Karakurt. There is no requirement to accept the whole of the evidence of any one witness with respect to corroboration.[59]
[59] Chanaa v Zarour [2011] NSWCA 199, [86].
I do not accept that the evidence was sufficient to corroborate Mr Karakurt’s allegations or that his evidence was corroborated, un-contradicted and unchallenged.
Accordingly, Mr Karakurt has not made out this ground of appeal.

Was the evidence inherently improbable, unreasonable or unlikely?

Mr Karakurt maintains the Arbitrator erred in that he “failed to find that [his evidence] was inherently improbable, such that no reasonable person could accept such evidence, or that such evidence was unreasonable or unlikely”. He relies on the authorities of Holman, Hardy, Perrot; Reid and Suters cited above.

Mr Karakurt submits that these authorities establish that where un-contradicted evidence is adduced:
(a)    the Court is bound to accept it unless it is so incredible [and unreasonable] that it could not be accepted;[60]
(b)    that the Court is bound to accept evidence that is inherently reasonable, probable and conclusive of the matter,[61] and
(c)    that the Court should explain why the un-contradicted evidence is rejected[62], and that a failure to do so may constitute an error of law[63].
[60] Citing Holman.
[61] Citing Hardy.
[62] Citing Perrot, [33].
[63] Citing Suter.
Given the inconsistencies in Mr Karakurt’s evidence discussed above, I do not accept that an evaluation of the whole of the evidence could establish that Mr Karakurt’s assertions were “reasonable, probable and conclusive”. It was open to the Arbitrator to determine on the evidence before him that the assertions made by Mr Karakurt were unreasonable and unlikely in the light of those inconsistencies, and that he did not feel a “sense of actual persuasion”.[64]
[64] Reasons, [90].
Mr Karakurt’s evidence was not “un-contradicted”. It was contradicted by the contemporaneous material discussed at length at Arbitration and by the Arbitrator in his determination. The above authorities do not assist Mr Karakurt. The Arbitrator did not decide the case solely because of the absence of complaint and failure to seek medical treatment. That was only one factor in his decision making process. He decided the case on the inconsistencies between the entries in the clinical notes (including references to other complaints and low back symptoms when playing football) and the factual matrix put forward by Mr Karakurt.
The Arbitrator’s decision in this regard discloses no error.

Did Mr Karakurt have the opportunity to respond to the issue of injury?

Vikson first raised the issue of injury in its s 74 notice dated 7 October 2015.[65] The reasons for declinature expressly referred to the clinical notes from Wollongong Medical Centre and recorded each of the entries that were relevant to its decision. The same entries were relied on both in the documentary evidence contained in the Reply to the ARD and in submissions made at Arbitration.
[65] ARD, pp 51–54.
Mr Karakurt provided two statements. The first statement (dated15 May 2017) was a lengthy statement that included Mr Karakurt’s explanation as to why he did not discuss his problems with his doctors.[66] The second statement was admitted at Arbitration (except for [7] and the second sentence of [9]). It dealt particularly with the clinical entry of 9 December 2012, attributing the history taken to have been compromised by his limited English skills. He also denied a football injury.
[66] ARD, pp 81–87 at [32] and [33].
Mr Karakurt further relied on the lay evidence of his fiancée and daughter, said to be filed in answer to the issues raised in the clinical records.
With respect to procedure in the Commission, in Aluminium Louvres & Ceilings Pty Ltd v Zheng[67] Bryson JA said:
”The requirements of the rules for information to be lodged in advance and for statements revealing the cases of parties to be made in advance, taken with the width of the sources of information on which the Commission is authorised to act and the ways in which it is authorised to proceed, mean that assumptions upon which common law trials are conducted should not be readily carried over when testing contentions that a hearing before an Arbitrator was not conducted in a fair way.”[68]
[67] [2006] NSWCA 34 (Zheng), [85].
[68] Zheng, [25].
Mr Karakurt has had ample opportunity to respond to the issue of injury in the form of statement evidence and the matter proceeded to Arbitration (without objection from Mr Karakurt) on the basis of the documentation.
The submissions do not disclose error on the part of the Arbitrator.

Was cross examination required before the Arbitrator could reject the evidence?

It is well settled that where documentary evidence is adduced in proceedings in the Commission it is open to the Arbitrator to determine issues of credit without the necessity to hear oral evidence or hear and observe evidence by cross-examination and the rule in Browne v Dunne[69] does not apply.
[69] (1894) 6 R 67.
In Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation[70] Hunt J observed:
“Documents exchanged between the parties to litigation before the commencement of the trial are able to give notice that a witness's account of events will be challenged in particular ways, so that there is no breach of Browne v Dunn if the witness' account is not challenged in cross-examination. - Marelic v Comcare [1993] FCA 790].”[71]
[70] [1983] 1 NSWLR 1.
[71] [1993] FCA 599; 121 ALR 114, [120].
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.[72]
[72] Ali v Nationwide News Pty Ltd [2008] NSWCA 183, [110]–[112]: M & E Hull Pty Ltd v Thompson NSWCA 359, [21].
Relevant to proceedings in the Commission, Campbell JA in New South Wales Police Force v Winter[73] applied the following passage from his decision in West v Mead[74]:
“The consequence of these decisions is that the circumstances in which Browne v Dunn will require a matter to be put to a witness in cross-examination will depend upon the nature of the pre-trial preparation there has been, and whether that pre-trial preparation has been sufficient to give notice to a witness of the submission ultimately intended to be put to the court. An aspect of this is that Browne v Dunn will require more extensive cross-examination in a case where all the evidence is given orally, than is necessary in a case where the substance of the evidence proposed to be given by each side is notified in advance by affidavit or statement”.[75]
[73] [2011] NSWCA 330.
[74] [2003] NSWSC 161; 13 BPR 24, 431 (West v Mead), [98].
[75] [2011] NSWCA 330, [81] (Giles JA and Handley AJA agreeing) citing West v Mead, [98].
Addressing the relevant authorities in Quadi v The Reject Shop (Aust) Pty Ltd[76] Roche DP said that in procedures before the Commission the rule in Browne v Dunn “does not require that matters about which notice has already been given be put in cross-examination” in the Commission.[77]
[76] [2008] NSWWCCPD 3 (Quadi).
[77] Quadi, [56].
The rule in Browne v Dunne is not a rule of evidence but is a procedural rule to protect the concept of affording the parties procedural fairness.[78]
[78] Quadi, [56].
Mr Karakurt’s submissions that the Arbitrator has erred in making an adverse credit finding in the absence of cross examination cannot be maintained. I do not accept that Mr Karakurt has been denied procedural fairness, particularly in the absence of any application to adduce oral evidence at the arbitration.

Did the Arbitrator fail to make findings on “credit” and record observations of Mr Karakurt’s or the witnesses’ demeanour?

Mr Karakurt asserts that the Arbitrator ought to have assessed his demeanour by observations of his oral evidence. There was no application made by his legal representative to adduce oral evidence or by Vikson to cross examine him. Nor is there any obligation for the Commission to require oral evidence.
There is no requirement for the Arbitrator to observe the demeanour of Mr Karakurt.[79] Similarly there is no requirement for the Arbitrator to observe the demeanour of Ms Karakurt and Ms Kahraman. Again, no attempt was made to call them to give oral evidence.
[79] MZWIQ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1636, [13].
In those circumstances, Mr Karakurt can make no complaint that the Arbitrator ought to have and failed to observe the demeanour of the witnesses.
In any event, observations of demeanour should be treated with caution.[80]
[80] Fox v Percy [2003] HCA 22 214 CLR 118, [129]; Goodrich Aerospace v Arsic [2006] NSWCA 187, [16]–[31].
The Arbitrator made the factual finding that he could not accept the lay evidence as recorded above. This is a finding of reliability of a witness, which was open to the Arbitrator in the absence of cross-examination. The Arbitrator applied the correct standard of proof that on the balance of probabilities he was not persuaded by Mr Karakurt’s evidence to the requisite level (an actual persuasion).
The Arbitrator’s findings disclose no error.

Did the Arbitrator err by failing to give reasons based on the evidence for not accepting the lay witnesses?

Mr Karakurt asserts that the Arbitrator failed to give reasons based on a “careful” reference to the evidence and did not give reasons founded on the evidence for not accepting the evidence.
The Arbitrator determined he was unable to be satisfied on the balance of probabilities that the injury occurred as alleged.
He did so in the context of an examination of all of the evidence. He noted the contemporaneous evidence was not only inconsistent with Mr Karakurt’s evidence but also that of Ms Karakurt and Ms Kahraman as to the presence and severity of symptoms.
I have referred to and summarised the analysis of the evidence recorded by the Arbitrator at [92] – [107] above. It is clear from the Arbitrator’s accurate and detailed examination of the evidence that the reasons given by him for finding against Mr Karakurk were sufficient to found his determination.
The Arbitrator formed the view that Ms Kahraman’s statement, together with the statement of Ms Karakurt, ought to be given little weight. The portions of the statements admitted were limited in terms of what those witnesses recalled and were prepared some seven years after the alleged injury, a significant effluxion of time. As the Arbitrator remarked, the reports of unremitting symptoms causing the need for treatment and substantial time off work was inconsistent with the clinical notes that recorded no medical treatment sought and no complaints in the low back region until December 2012.

On the basis of the above, it is quite appropriate that the Arbitrator placed little weight on the statement evidence adduced just prior to the Arbitration. The Arbitrator did not fall into error when he failed to accept Mr Karakurt’s evidence and placed little weight on the two other lay witness statements.
Central to Mr Karakurt’s allegation of error is that neither Ms Karakurt nor Ms Kahraman were cross-examined with respect to how accurately they recalled the facts and such cross examination was required in order for the Arbitrator to reject their evidence.
I refer to the authorities cited at [167] – [171] above and my conclusions above, and reiterate that it is open to the Arbitrator to reject evidence that has not been subject to cross examination.
No error has been made out.

Should a Jones v Dunkel inference have been drawn in the absence of evidence from Mr Corbevski?

The rule in Jones v Dunkel only applies where a party is required to explain or contradict something.[81]
[81] Jones v Dunkel, at [321].
A Jones v Dunkel inference may be drawn against a party where the party would be expected to, but does not call a witness who could give evidence on a relevant matter and that failure is unexplained.[82]
[82] Payne v Parker [1976] 1 NSWLR 191, [201].
The inference to be drawn in these circumstances is not that the witness's evidence would have been adverse to the party, but that it would not have assisted the party’s case.[83]
[83] Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361; ASIC v Hellicar [2012] HCA 17; 247 CLR 345, [168] and [232].
Mr Karakurt submits that by failing to adduce evidence that would have been available, Vikson has accepted that Mr Karakurt reported his back symptoms to Mr Corbevski on the particular day.
The Arbitrator considered the submission made by Mr Karakurt’s counsel.[84] He declined to draw the inference submitted by Mr Karakurt’s counsel that “nothing Mr Corbevski might say would assist Vikson” because there was no evidence that the report of injury was documented and also because the significant passage of time may mean that the witness’s recollection might be unreliable.
[84] Reasons, [81].
The drawing of a Jones v Dunkel inference is discretionary. The factors taken into account by the Arbitrator were appropriate matters to consider in the exercise of his discretion.
In any event, even if the Arbitrator had drawn the inference suggested by Mr Karakurt’s counsel, that fact was one of many factors that needed to be considered in determining the question of injury.
While that inference (if made) weighs in favour of Mr Karakurt having suffered the injury pleaded, it does not cure the contradictory evidence in the clinical notes, particularly the entry of 9 December 2012 that recorded “sometimes LBP when playing football. Never seen a doctor in the past in that regard. Nil injury.”[85]
[85] Reply, p 18.
I am of the view that even if the discretion was exercised in favour of Mr Karakurt, it would not overcome the evidentiary difficulties referred to above and the outcome would be no different.

CONCLUSION

I am not satisfied that Mr Karakurt has demonstrated the Arbitrator has fallen into error of fact, law or discretion in the rejection of Mr Karakurt’s claim.
On consideration of the merits of the appeal, as well as the history of the matter and the lack of exceptional circumstances in filing the appeal out of time, I decline to extend the time for the making of the Appeal.

DECISION

The Appellant’s application to extend time for the making of the appeal pursuant to r 16.2(12) of the Workers Compensation Commission Rules 2011 is refused.

Elizabeth Wood

Deputy President

31 January 2018