Kirunda v NSW Police Service
[2016] NSWWCCPD 40
•11 August 2016
| WORKERS COMPENSATION COMMISSION | ||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Kirunda v NSW Police Service [2016] NSWWCCPD 40 | |
| APPELLANT: | Bill William Kirunda | |
| RESPONDENT: | NSW Police Service | |
| INSURER: | Employers Mutual Ltd | |
| FILE NUMBER: | A1-1183/15 | |
| ARBITRATOR: | Mr J Wynyard | |
| DATE OF ARBITRATOR’S DECISION: | 25 November 2015 | |
| DATE OF APPEAL DECISION: | 11 August 2016 | |
| SUBJECT MATTER OF DECISION: | Leave to extend time to appeal; admission of fresh evidence; alleged errors in fact finding; s 11A(1) of the Workers Compensation Act 1987; duty to give reasons | |
| PRESIDENTIAL MEMBER: | Deputy President Michael Snell | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Self-represented |
| Respondent: | Bartier Perry | |
| ORDERS MADE ON APPEAL: | 1. The time to appeal is extended to 11 January 2016. 2. Paragraph [1] of the Certificate of Determination dated 3 June 2015 is confirmed. 3. The Certificate of Determination dated 25 November 2015 is revoked. 4. The matter is remitted for re-determination by another Arbitrator. | |
BACKGROUND
Bill William Kirunda (the appellant) worked as a clerk for the NSW Police Service (the respondent) between 2006 and 2013. He worked predominantly in the Criminal Records Section, although was periodically seconded to other departments within the respondent, particularly the Office of General Counsel. His employment was terminated on 13 June 2015 (18 August 2015 at T33.29–34).
The appellant alleged that he suffered psychological injury, involving “Adjustment Disorder with Depressed & Anxious Mood Post Traumatic Stress Disorder”. The Application to Resolve a Dispute lodged on 5 March 2015 (the Application) originally pleaded the date of injury as “10 & 27 August 2012”. The injury was alleged to have occurred as a result of “Bullying, Harassing due to nature and conditions of employment”.
At the arbitration hearing on 29 May 2015, the date of injury was amended, to be 5 February 2013 (T5.21–7.5). This was on the basis of the ‘disease’ provisions of the Workers Compensation Act 1987 (the 1987 Act) (T5.12–20).
The appellant additionally alleged that he suffered injury on 27 August 2012, whilst on a ‘recess’ within the meaning of s 11 of the 1987 Act. This involved an alleged assault.
The Application, as amended, claimed continuing weekly compensation from 5 February 2013, a general order in respect of expenses pursuant to s 60 of the 1987 Act, and permanent impairment compensation in respect of 19 per cent whole person impairment.
Employers Mutual Limited (the insurer) issued a number of s 74 notices. In a notice dated 17 April 2013, it denied ‘injury’. It relied on a report of Dr George dated 3 April 2013, which diagnosed mild to moderate major depression, which the doctor said did not relate to workplace bullying and harassment. The notice also relied on s 11A(1) of the 1987 Act, on the basis that any psychological injury resulted predominantly from reasonable action by the respondent with respect to the provision of employee benefits (study leave). Reliance was also placed on s 9A of the 1987 Act. This notice did not deal with the allegation of assault on 27 August 2012.
The insurer issued a further s 74 notice on 26 August 2014, in response to a claim by the appellant for permanent impairment compensation. It denied ‘injury’, in respect of both the ‘nature and conditions’ of employment, and the assault on 27 August 2012. It relied on s 9A of the 1987 Act. It pleaded other matters going to quantum and the entitlement based on s 66 of the 1987 Act.
This notice also had attached to it a further report of Dr George, dated 23 July 2014. On this occasion, Dr George diagnosed the appellant as suffering from “delusional disorder in association with major depression”, which he did not necessarily believe was related to the appellant’s employment.
THE ARBITRAL PROCEEDINGS
The proceedings were listed initially before a Commission Arbitrator, Mr Harris, for arbitration hearing on 29 May 2015. The appellant was represented by Mr Campbell of counsel instructed by Mr Amacha, and the respondent was represented by Ms Wood of counsel instructed by Mr Marsh.
A Certificate of Determination dated 3 June 2015 recorded that Arbitrator Harris made a finding that the appellant was assaulted on 27 August 2012, in circumstances which fell within s 11 of the 1987 Act. That Certificate included various procedural orders going to the provision of witness statements, supply of particulars, cross-examination, and leave to issue Notices and/or Directions for production of documents. It provided for the relisting of the matter in July 2015.
Whilst the matter was adjourned it was transferred (for reasons unconnected to the proceedings) to Arbitrator Wynyard, who dealt with it thereafter. The matter proceeded to further arbitration hearing on 9 July 2015 and 18 August 2015, and also a telephone conference on 7 August 2015. Mr Campbell and Ms Wood again appeared at the further arbitration hearing dates. At the telephone conference, the appellant was represented by his solicitor, Mr Amacha, although the appellant (who is legally qualified) performed much of the advocacy himself. The respondent was represented by its solicitor, Mr Marsh.
A document was prepared on the appellant’s behalf headed “Particulars of Relevant Events Relied upon as Causing the Psychiatric Injury”. That document set out 44 events (or sequences of events) which were alleged to have resulted in the appellant’s psychological injury. It was tendered and marked exhibit ‘C’. A document prepared on the respondent’s behalf, headed “Particulars of Relevant Events Relied Upon as Causing the Psychiatric Injury and Respondent’s Reply”, was tendered and marked exhibit ‘H’. It responded to the various allegations in exhibit ‘C’ as either “Admitted”, “Not Admitted” or “Denied”.
Ultimately no oral evidence was adduced. On 9 July 2015, the Arbitrator rejected applications by both parties to cross-examine (T20.20–25.3). The appellant made an oral statement during the proceedings, over the objection of the respondent (T25.3–28.25).
Written submissions were lodged on the appellant’s behalf, in the arbitral proceedings, dated 14 August 2015 and 11 September 2015. Written submissions were lodged for the respondent on 28 July 2015.
THE ARBITRATOR’S DECISION
The Certificate of Determination and reasons were dated 25 November 2015.
The Arbitrator described the 44 allegations, and the respondent’s responses. The Arbitrator said that he did “not propose to examine every event, but rather to conduct an overview as to their nature”. He said the appellant “named no less than 18 individuals whom he alleged had all at some time or another bullied or harassed him”. The Arbitrator referred to a number of the appellant’s allegations “by way of further example” (reasons at [25]–[33]). At [34] he said:
“The allegations made by the [appellant] in respect of the particulars I found to be implausible, and lacking in any probative value. The [appellant’s] statements were rambling, discursive and full of opinion and conclusion. They were highly subjective and unsupported by any objective evidence that would tend to suggest that the behaviour of any particular person was unreasonable at the time that the [appellant] was employed.”
The Arbitrator referred to allegations by the appellant, involving a letter from Superintendent Paul Glynn dated 28 May 2014 and Ms Pidding (a manager). The Arbitrator said that the allegation of “bullying and harassment” based on this material was “without substance, and demonstrate[d] further that by this stage the [appellant’s] perception was seriously compromised as to what was real” (at [37]).
The Arbitrator said that the appellant’s perception of bullying and harassment “clearly worsened with the passing of time”. In March 2013 he used “in-car video cameras” to randomly film traffic. He took photographs of car numberplates, in October 2014, May 2015 and June 2015, and “applied to have the numberplates identified as he said that he was of the opinion that some, if not all, were unmarked Police cars” (at [39]–[40]). At [40] the Arbitrator said:
“There is no evidence to support these allegations which showed at the very least a person who had become obsessed with the idea that he had been targeted.”
The Arbitrator referred to statements made by the appellant at the telephone conference on 7 August 2015, dealing with the possibility he was being followed, and at [43] concluded “[t]his behaviour indicated clearly that the [appellant] had become delusional.” The reasons dealt with the evidence dealing with the assault on 27 August 2012, and the appellant’s evidence that subsequent related events had:
“… done nothing to alleviate my anxiety about the assault being a possible action by one or more individuals within NSW PF (who have proven themselves to be highly unethical) to use their knowledge and networks to organise a hit to intimidate me into abandoning my complaints.” (at [46])
At [52] the Arbitrator said:
“As indicated earlier, this overview of the evidence is by no means exhaustive as I am satisfied on reading the evidence that the [appellant’s] complaints must be rejected. All the 44 events that were alleged to be motivated by bullying and harassment, as a question of fact I find not to be made out. However, the allegations do point to a serious misperception of ordinary workplace events, and the explanation for this condition is to be found in the medical evidence.”
Reference was made to the medical evidence from the practice of Dr Dias (the general practitioner), Dr Smith (a treating psychiatrist), Ms Hidalgo (a treating psychologist) and Dr George (the psychiatrist qualified by the insurer). The Arbitrator referred to the submissions of the parties, including reference to the decision in Attorney General’s Department v K [2010] NSWWCCPD 76; 8 DDCR 120 (Attorney General’s Department v K).
The Arbitrator referred to s 11A of the 1987 Act. At [84] he said:
“I do not accept that any of the allegations made against the Police Force have been demonstrated to be anything more than reasonable requests in relation to, variously, transfers, promotions, demotions, performance appraisals, discipline or the eventual dismissal of the [appellant].”
The Arbitrator accepted that s 11A(1) of the 1987 Act could not apply to the assault that occurred on 27 August 2012 (at [79]). At [85] he said that he did not accept “that the assault constitutes a separate injury”. He rejected Ms Hidalgo’s view “that the assault caused a PTSD”. Neither of the psychiatrists in the case (Dr Smith and Dr George) made that diagnosis. He said there was “some uncertainty” why Ms Hidalgo had failed “to make that diagnosis initially”. The Arbitrator said that there was “no contemporaneous record that this episode itself caused an exacerbation or aggravation of his psychiatric condition”. The Arbitrator accepted the opinion of Dr George, that the incident on 27 August 2012 “was simply one of many that demonstrated the onset of the [appellant’s] delusional disorder” (at [89]). He accepted the evidence of Constable Thomas that, when he attended the appellant on the night of 27 August 2012, the appellant “was showing no sign of distress” (at [90]).
The Arbitrator found that the incident on 27 August 2012 “did not cause a post Traumatic Stress Disorder [sic], and did not, within the definition of a disease injury, aggravate his pre-existing condition” (at [90]).
The Arbitrator said (at [93]):
“I accept Dr George’s diagnosis that the [appellant] has a delusional disorder (incorporating paranoid schizophrenia) in association with major depression.”
Insofar as there was conflict between the opinions of Dr Smith and Dr George, the Arbitrator preferred the opinion of Dr George (at [93]).
The Arbitrator made the following findings relevant to ‘injury’ and s 11A(1) of the 1987 Act:
“96. Dr Smith identified that the [appellant] felt that he had been passed over, and it may be that the [appellant], a highly qualified individual, found the work he was asked to do beneath him, which initially caused him frustration, but then escalated into the condition he now suffers. I am satisfied that it was his employment with the respondent that caused the appellant to manifest his symptoms. I prefer Dr George’s opinion that the [appellant’s] condition is best described as a delusional disorder secondary to paranoid schizophrenia associated with a major depression. I therefore find that the nature and conditions of the [appellant’s] employment aggravated that condition. Liability is accordingly established pursuant to s 4(b)(ii) and s 16 of the 1987 Act.
97. However, for the reasons given, I am satisfied that the respondent has established that the provisions of s 11A apply, and accordingly the [appellant] must fail.”
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.”
It was submitted by the appellant (in the Application to Appeal [the appeal]) and the respondent (in the Notice of Opposition to Appeal [Notice of Opposition]) that the matter could be determined on the papers. The appellant lodged submissions in reply, on 23 March 2016, in which he submitted that the matter should not be determined on the papers, and “a hearing should be held”. He referred to “the breadth and complexity of the documentary evidence”, and “ambiguities in relation to the evidence”.
The appellant holds a Bachelor of Laws degree with third class honours from the University of London, obtained as a distance student. He stated that he was admitted as a solicitor in NSW in 2003. He holds a Graduate Diploma in Legal Practice from the University of Technology in Sydney. It was stated in his submissions that the appellant obtained a Master of Laws degree from the University of Sydney in 2010. The appellant has been self-represented in the conduct of these appeal proceedings. Having regard to the appellant’s request, the Commission listed the mater for oral hearing on 31 May 2016 and 1 June 2016.
On 27 May 2016 the appellant, by email, lodged a “Request for urgent reconsideration of the decisions of Arbitrator John Harris of 29 May 2015 and of Arbitrator John Wynyard of 25 November 2015 under section 350(3)” of the 1998 Act. The accompanying submissions referred essentially to allegations of actual or apprehended bias, and the denial of procedural fairness, on the part of the Arbitrators. There was reference to the Arbitrator Code of Conduct. The submissions made application for the admission of further evidence in the appeal, which will be dealt with below. The submissions requested that the hearing dates of 31 May 2016 and 1 June 2016 be vacated, “to enable the determination of this reconsideration application and lodgement of an appeal if necessary”.
The appellant’s submissions requested that any future determination of his appeal be done “on the papers unless I manage to obtain legal representation at which time I will immediately inform the Commission”. The respondent, in short submissions lodged by email on 27 May 2016, requested that if the adjournment (which was opposed) was granted, “the appeal should be determined on the papers”.
The Commission issued a Direction on 27 May 2016 vacating the hearing dates. It noted that the appeal was stayed pending the reconsideration application being dealt with, and that it was the wish of both parties that the appeal be dealt with on the papers. The appellant, on 20 June 2016, withdrew his reconsideration application. It has not been suggested that the appellant has obtained legal representation subsequently.
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the ultimate submissions made by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
ISSUES IN DISPUTE
The appellant stated that he was appealing against the award in favour of the respondent. More specifically, he was appealing against:
(a) the finding that the respondent had established a defence pursuant to s 11A(1) of the 1987 Act, and
(b) the finding that the assault on 27 August 2012 did not aggravate his psychiatric injury and was not an independent source of liability against the respondent.
The grounds raised in the appeal are:
(a) Whether the Arbitrator erred in making his factual findings. There is an associated ground that the Arbitrator failed to give adequate reasons for rejecting the appellant’s evidence and accepting that of the respondent.
(b) Whether the Arbitrator erred in his factual findings relating to the assault on 27 August 2012 and relevant medical evidence.
(c) Whether the Arbitrator erred in failing to apply the rule in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. Did he fail to take into account the lack of response of the respondent to the appellant’s evidence, and “the advantages enjoyed by the Respondent in relation to the appellant”.
The respondent disputed the appellant’s grounds of appeal and submitted that the issues in dispute and the Arbitrator’s findings were clearly set out in his decision, and were open to him on the evidence.
In the alternative, the respondent contended that the Arbitrator erred in finding injury due to the nature and conditions of employment, involving aggravation of the appellant’s underlying psychological condition.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirement as to quantum, as found in the provisions of s 352(3) of the 1998 Act, has been met.
Extension of time to Appeal
The appeal was lodged on 11 January 2016, outside the 28 day period provided in s 352(4) of the 1998 Act.
The Workers Compensation Commission Rules 2011 (the Rules) at Pt 16 r 16.2(12) provide:
“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.”
The appellant sought an extension of time. He referred to Gallo v Dawson [1990] HCA 30; 64 ALJR 458 (Gallo). He referred to the difficulties he experienced in obtaining representation for the appeal. He said he had instructed his then solicitor that he wished to appeal, on 30 November 2015. His counsel, at the time, advised that the appeal did not have reasonable prospects of success. The appellant eventually drafted the appeal himself, he said whilst in poor health. He said he could not afford legal representation, and had “minimal emotional, social or financial support in Australia”.
The respondent opposed the extension of time. It submitted that the appellant was highly qualified, and had a clear ability to collect evidence, make submissions and appreciate the legal process. He was appraised of the Arbitrator’s decision on 26 November 2015. His solicitors and counsel acted with diligence in considering the prospects of appeal, and advising the appellant of their views, by 17 December 2015. This left the appellant “five clear days to lodge the Appeal, which it is submitted was ample time, given the Appellant’s level of experience and that he had undoubtedly already evaluated the decision when he instructed his Solicitor to appeal as well as having the assistance of another legally qualified individual.”
The respondent additionally submitted that the appeal had no prospects of success.
In Bryce v Department of Corrective Services [2009] NSWCA 188 Allsop P (as his Honour then was) (Beazley and Giles JJA agreeing), dealing with Pt 16 r 16.2(12) of the Rules, at [8] said:
“In my view, the phrase ‘in exceptional circumstances’ finding its place in the middle of the rule is to be dealt with as a matter to be considered by the Presidential member as a matter within jurisdiction as opposed to a precondition to the operation of jurisdiction.”
In Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 Campbell JA (Tobias JA and Handley AJA agreeing) at [66] said:
“Another question of construction concerned ‘exceptional circumstances’ in rule 31.18(4). In San v Rumble (No 2) (2007) NSWCA 259 at [59]–[69], I gave consideration to the expression ‘exceptional circumstances’ in a different statutory context to the present. Without repeating that discussion in full, I shall state such of the conclusions as seem to me applicable in the construction of rule 31.18(4).
(a) Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered: R v Kelly (Edward) [2000] 1 QB 198 (at 208).
(b) Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors: R v Buckland [2000] [2000] 1 WLR 1262; [2000] 1 All ER 907 (at 1268; 912–913).
(c) Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No 295 [2007] FCA 388 (at [26]).
(d) In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision: R v Buckland (at 1268; 912–913).
(e) Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case: Awa v Independent News Auckland [1996] 2 NZLR 184 (at 186).”
In Gallo, McHugh J at [2] said:
“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: see Avery v. No.2 Public Service Appeal Board (1973) 2 NZLR 86, at p 92; Jess v. Scott (1986) 12 FCR 187, at pp 194–195. 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: see Burns v. Grigg [1967] VicRp 113; (1967) VR 871, at p 872; Hughes, at pp 263–264; Mitchelson v. Mitchelson (1979) 24 ALR 522, at p 524. 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: Vilenius v. Heinegar (1962) 36 ALJR 200, at p 201.”
The following matters favour an extension of time:
(a) the period by which the matter is out of time is relatively short, about two and a half weeks;
(b) the explanation for how the appeal came to be lodged late is reasonable. The appellant advised his then legal advisors, in good time, that he wished to appeal, and sought advice. By the time they responded (and I mean no criticism) there was a period of about five days in which the appellant (if the appeal was to proceed in time) needed to draft grounds, submissions and a chronology. The matter was complex; there was extensive documentary material and three days of transcript. This was in circumstances where the appellant did not have solicitors to undertake those tasks on his behalf. Although the appellant was legally qualified, it was not suggested that he had any particular experience in this jurisdiction.
(c) The circumstances leading to the appeal not being put on in time are appropriately characterised as ‘exceptional’. They are not those regularly, routinely or normally encountered.
(d) There is prejudice to the appellant if leave is not granted, as his grounds of appeal could not be agitated on their merits. The outcome of the proceedings is important to the appellant.
(e) The respondent does not argue that an extension will cause it prejudice, beyond its interest in retaining a decision favourable from its point of view.
(f) The appeal raises issues which have merit and are arguable.
I am satisfied that, if the appellant lost the right to appeal, this would work demonstrable and substantial injustice. The time to appeal is extended to 11 January 2016.
FRESH EVIDENCE
‘Fresh evidence’ on appeal is governed by s 352(6) of the 1998 Act which provides:
“(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.”
Practice Direction No 6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal.
In CHEP Australia Ltd v Strickland [2013] NSWCA 351 (Strickland) Barrett JA (Macfarlan JA agreeing) dealt with the application of s 352(6) of the 1998 Act. His Honour at [27] and [31] said:
“27. In the s 352(6) context, there are two threshold questions. They arise as alternatives and are set out in the second sentence of the provision. The first goes to the issue of availability in advance of the proceedings. The second entails an assessment of whether continued unavailability of the evidence ‘would cause substantial injustice in the case’. The discretion to admit becomes available to be exercised only if the Commission is satisfied as to one of the threshold matters.”
“31. … The part of s 352(6) concerning ‘substantial injustice’ does not direct attention to possibilities or potential outcomes. The task is to decide whether absence of the evidence ‘would cause’ substantial injustice in the case. There must therefore be a decision as to the result that ‘would’ emerge if the evidence were taken into account and the result that "would" emerge if it were not. If the result would be the same on each hypothesis, the ends of justice cannot be said to have been defeated by exclusion.”
The power to admit fresh or additional evidence is therefore concerned with evidence that, if accepted, would have been likely to demonstrate that the decision appealed against was erroneous: Northern NSW Local Health Network v Heggie [2013] NSWCA 255; 12 DDCR 95 per Sackville AJA (Ward JA agreeing) at [66].
The appellant, in “Supporting Documentation” attached to his appeal, submitted that a number of documents should be admitted as “new evidence”. Annexure ‘E’ to the appeal contained a schedule of this material. Copies of the documents the subject of the application were attached and marked as annexure ‘F’.
The respondent, in its Notice of Opposition, said that it opposed the appellant’s application to adduce fresh evidence.
The First Document
This is described as handwritten file notes regarding the incident on 10 July 2006 (event number [1] in exhibit ‘C’). The event is described in exhibit ‘C’ as “Cheryl Thompson removed documents from the [appellant’s] desk without his knowledge or approval”.
The appellant submitted that the respondent denied “the existence of proof” in relation to this event. The document was produced by the respondent in the proceedings, but the appellant’s legal representatives did not comply with his instructions to admit it into evidence. The respondent, a model litigant, should not have denied the existence of these facts. There is no prejudice.
The respondent submitted that the document was “clearly available” at and before the arbitration hearing. It was “largely illegible, difficult to comprehend” and not explained by any statement from the appellant. The respondent said it “simply cannot respond to it”. The respondent expressed doubt about the contemporaneity of the document, given the appellant’s tendency during his employment to record events by computer typed memos to himself.
The appellant’s submissions in reply, lodged on 23 March 2016, revisited this document. The appellant, at [12] of those submissions, provided a typed version of its contents. The appellant said that the events were dealt with in his statement dated 23 February 2015. He submitted that the respondent’s submissions in opposition, at annexure ‘B’, paragraph [1], said that there was no evidence supporting the event on 10 July 2006. The appellant submitted the presence of his file note was evidence, the exclusion of which would cause “substantial injustice”.
The paragraph in his statement, to which the appellant referred, did not deal with the file note, when it was created or why. It did deal with similar subject matter to that covered in the file note. On the appellant’s submission, the file note is relevant, but this is insufficient to satisfy the test in s 352(6) of the 1998 Act.
On the appellant’s submission, admission of the document cannot be justified on the basis of the first limb in s 352(6). This leaves the second limb – can the appellant establish that its continued unavailability would cause “substantial injustice”, as that term is construed in Strickland? Will the result that would emerge be different because of its admission?
The file note was written by the appellant. The dates “10/7/06” and “11/7/06” appear, with handwriting beneath them. It may have been produced contemporaneously, although this is not necessarily apparent from the document. It is, as the respondent submitted, largely illegible and difficult to comprehend, although this difficulty is alleviated by the typed version included in the submissions in reply.
The appellant’s submissions did not address the test described in Strickland. The appellant’s statement dated 23 February 2015 raised similar matters to the file note, in any event. The file note was more evidence going to those matters, rather than fresh evidence. It could not be concluded that “substantial injustice” would result from its continued unavailability. I am not persuaded that tender of the file note has the potential to change the result. The application to tender the document on appeal is rejected.
The Second Document
This is described as a copy of a text message from Constable Thomas to the appellant on 28 August 2012. The appellant, in his submissions, said that he gave instructions for this document to be admitted, after personally delivering it to his counsel’s chambers, but this did not happen.
The respondent submitted that the document “has no probative value other than to establish the Appellant, contrary to his submissions, was in fact appraised of the event number for the assault of 27 August 2012 on 28 August 2012”.
The document is a screen shot from a mobile telephone, dated 28 August 2012, with a time of 19:28. It reads, in its entirety:
“Hi Bill, I have made a report of your incidnet [sic] your event number it [sic] E48664636 If you have any questions contact Merrylands Police Station 98974899 Thanx CST THO”
The appellant made further submissions on this document in his submissions in reply. He accurately submitted that the respondent had denied an allegation, in exhibit ‘C’ at [28], that Constable Thomas on 28 August 2012 sent the appellant a text message, telling him to contact Merrylands Police Station regarding the assault. The appellant also referred to Constable Thomas’s statement at [19], and said that the Constable had denied sending the text message, saying that the appellant was informed that the incident had been disseminated to Parramatta.
Constable Thomas’s statement does not deny that he sent the text message. It does say that he disseminated the case to Parramatta on 28 August 2012, when his “involvement in the case effectively ended”. His statement is not necessarily inconsistent with the existence of the text message.
Ultimately, the issue to which this further document relates is peripheral to the ‘injury’ issues between the parties.
The document cannot be admissible on the basis of the first limb in Strickland, it clearly was available to be used in the arbitration hearing. It could confirm that the appellant made a report of the relevant incident to Constable Thomas prior to the time of the text message. However it was, in any event, common ground between the parties (and accepted by the Arbitrator) that the appellant reported the assault to Constable Thomas on 27 August 2012 (reasons at [46]–[50]). Admission of the document will not change the result. It cannot be admitted on the basis of the second limb in Strickland. The application to tender the second document on appeal is rejected.
The Third Document
This is described in annexure ‘E’ as a “Copy of email dated 9 April 2013, missing page from appellant’s statement dated 13 June 2013”.
The appellant submitted that, on his recollection, this document was included in documents submitted to the insurer, but not in the copies sent back, which his legal representative included in the Application. He submitted that there was no prejudice, and it should be admitted as it formed part of the original statement.
The respondent submitted that the document post-dated the appellant’s deemed date of injury by two months, and was not relevant to the determination.
The document is a copy email from the appellant directed to Laura Heasman (an injury management adviser with the respondent). In general terms, it spoke of the appellant’s concern regarding the respondent, and his view that the respondent may represent a hostile working environment. It requested that suitable duties be considered outside the respondent. It also requested “assistance in obtaining a copy of the relevant notebook pages from the officer”.
The appellant made further submissions about this document in his submissions in reply. He said that the document referred to events which allegedly aggravated his injury. It demonstrated that the role of the injury management adviser had been usurped by uniformed police.
Again, the document clearly cannot be admitted on the basis of the first limb in Strickland. The appellant has not sought to submit how the document would change the result, and it is not apparent how it would do so. The document cannot be admitted on the basis of the second limb in Strickland. The application to tender it on appeal is rejected.
The Fourth Document
This is described as an extract from the respondent’s sick leave policy.
The appellant stated that he “was not aware that his legal representatives had omitted to submit same to the Commission”. He said that it was part of a document on which the respondent relied, regarding the reasonableness of directions from the respondent that he attend medical examinations. It confirmed that an employee should be consulted before a medical examination was scheduled. There was submitted to be no prejudice. There were further short submissions dealing with this document in the appellant’s submissions in reply. It was basically submitted that the document was relevant.
The respondent submitted that “at this stage” (when there was difficulty with arranging medical examinations) the appellant “had already been off work for almost a year”. Such events could not have given rise to the alleged injury.
There is no material in the document which goes to a need for the respondent to consult with an employee about arrangements for medical examinations that may be arranged. There is a specific reference in the Overview of the Procedures section, to consulting with employees. However, this is in respect of something different, a need to consult about difficulties an employee is having in carrying out the inherent requirements of his or her position, and medical advice from the employee’s treating doctor.
Again, the document was clearly available to be used at the arbitration hearing, and it would need to be admissible under the second limb in Strickland, if at all. The appellant has not identified any basis on which it would potentially change the result. The application to tender the document on appeal is rejected.
The Fifth Document
This document is described in annexure ‘E’ as “Copy of file note by Commander Andrew Sipos regarding forced entry into the appellant’s home”. The appellant stated that it related to event number [43] in exhibit ‘C’, which is described as follows:
“29 January 2014 – Unjustified attendance at the [appellant’s] home by Commander Andrew Sarkos [sic, Sipos] of the Identification Services Branch in spite of previous complaints about attendance by the [appellant].”
The appellant submitted that this document was “amongst more than 2000 pages of materials in relation to both his workers compensation and Federal Circuit Court claims”. He submitted that, given his “psychological condition and the lack of assistance from his former legal representatives”, he could not reasonably have been expected to find it. The appellant submitted that the document was “the Respondent’s own record of the event”, and would assist “in determining the reasonableness of the attendance at the appellant’s home, Commander Sipos’s conduct while there, and subsequent directions to attend medical examinations”.
The respondent submitted that the document related to an event nearly 12 months post injury, and could not advance the appellant’s case.
The file note recorded that Commander Sipos attended the appellant’s home on 29 January 2014 to deliver papers relating to a medical examination. The appellant said such papers should be sent by registered mail or courier, and accused Commander Sipos of intimidation. The appellant refused to sign an acknowledgment of receipt, swore at Commander Sipos, and said he was going to “complain to the Human Rights. I’ll take out an AVO against you.”
Clearly, based on the appellant’s submissions, the document was available to the appellant at the time of the arbitration hearing. The appellant submitted:
“The document is not introducing any new arguments but simply confirming events already alleged and submissions made by the Respondent in relation to the defence of reasonable management action under s 11A …”
In further submissions on the document, made in reply, the appellant described this document as “evidence of high-handed, unlawful behaviour” which aggravated his injury. He submitted it was relevant. It was not submitted that the document was not available to the appellant, and could not reasonably have been obtained, at the time of the arbitration hearing. On the basis of the appellant’s submissions, I am not satisfied that the document would give rise to a different result. The application to tender the document on appeal is rejected.
The Sixth Document
This document is described at annexure ‘E’ as “List of documents handed to Dr George at the medical examination on 22 July 2014 which should have been attached to his report.” The document the subject of this application is not the material allegedly given to Dr George, but a statement of the appellant dated 22 July 2014, which lists various items. This does not assist the appellant. The list of documents could not, itself, represent probative evidence which would affect the result. The documents described are not attached to annexure ‘E’, nor are they the subject of submissions going to their admissibility pursuant to s 352(6) of the 1998 Act.
The appellant’s submission states that this material should have been attached to Dr George’s report; the documents are referred to in the addendum to the report at page 13. It is asserted that the “Respondent appears to have withheld those documents”. The appellant submits that the material should be admitted in the interests of justice, to clarify the information available to Dr George when he made his diagnosis of delusional disorder. Further short submissions by the appellant, made in reply, do not add anything.
The respondent submitted that most of these documents were in evidence before the Commission. The documents were copies of documents held by the appellant. It is “irrelevant that they were not annexed to the report”.
At least two of the documents, the appellant’s statement dated 13 June 2013, and the USB key containing the video footage of a police car following the appellant, were in evidence and referred to by the Arbitrator.
There is no basis for concluding that the appellant’s statement dated 22 July 2014, which simply lists other documents, should be admitted, applying the decision in Strickland.
There was a further document described in annexure ‘E’, as “Copy of email file note dated 18 July 2014, one of the documents in the list referred to in paragraph 2 above”. The appellant was the author and it was dated 18 July 2014. This document was not the subject of submissions by the appellant going to its admission, in the appeal. It was briefly submitted on in the appellant’s submissions in reply. He said it was a “contemporaneous record of a real event to counter the finding that I was or am delusional”.
The document was described as “record of events today”. In it, the appellant described returning to his parked car, to find a parking ticket of 15 March 2014 that had been on the dashboard inside his car, which had been “removed and placed under the wiper on the outside of the car”. The appellant described this as “ongoing intimidation and mind-games being played by individuals associated with Merrylands Police Station”.
The respondent’s submissions described the document as “self serving, [it] has no probative value and ought not to be admitted”.
On the face of it, the document is irrelevant to issues between the parties, it postdates the deemed date of injury by about one and a half years. It was a document written by the appellant, prior to the arbitration hearing, and must have been available to him prior to the hearing. It is not apparent how it would affect the result. The application to tender it on appeal is rejected.
Conclusion
The various documents referred to above, which the appellant sought to tender pursuant to s 352(6) of the 1998 Act, were available at the time of the arbitration hearing, and could have been tendered at that time, with reasonable diligence. Exclusion of the documents will make no difference to the result. Their exclusion will result in no injustice.
The Further Applications
The appellant’s submissions in reply, lodged on 23 March 2016, had attached to them (as ‘annexure A’) copies of two radiological reports relating to his lumbar spine, dated 4 and 5 February 2016, and a short report of Dr Balasingham, from Myhealth Medical Centre Merrylands, dated 16 February 2016. This material was referred to in the body of the submissions in reply at [3]–[4], the appellant saying “I believe the [lumbar] injury is the direct result of my psychological injury”.
The submissions did not specifically state that leave was sought to rely on this material as ‘fresh evidence’ pursuant to s 352(6) of the 1998 Act. Its attachment to the submissions suggested that the appellant wished to have the material considered by the Commission, as part of the appeal process. In the circumstances, it is appropriate that this be treated as an application to rely on fresh evidence.
The relevant documents post-dated the arbitration hearing and the Arbitrator’s decision. They potentially are admissible on the basis of the first limb in s 352(6) of the 1998 Act. However, they relate to the appellant’s lumbar spine, which is not, on the current pleadings, of relevance to the issues between the parties. As they are not relevant, the interests of justice do not favour their admission. In the exercise of the Commission’s discretion, the application that they be admitted as fresh evidence is refused.
The appellant’s reconsideration application, lodged on 27 May 2016, included further applications to admit fresh evidence on the appeal (see [31] above). On 27 June 2016, the appellant forwarded further submissions on the appeal, to the Commission, by email. That document had attached to it further material, which the appellant sought to have admitted.
Part 16 r 16.2(4)(c) of the Rules requires that an appellant’s Application to Appeal Against Decision of Arbitrator have attached to it “any new evidence in respect of which leave is to be sought, by the party lodging the application, in accordance with section 352(6) of the 1998 Act”. The documents in respect of which leave was sought, attached to the further submissions lodged on 27 May 2016 and 27 June 2016, did not comply with this Rule. Pt 1 r 1.6 gives the Commission a discretionary power to dispense with compliance with the Rules if it thinks fit. The appellant has not sought relief in that regard.
The respondent, at the Commission’s request, on 4 July 2016 lodged, by email, a response to the appellant’s further submissions and application for further evidence dated 27 June 2016. It opposed the appellant having leave to rely on the further submissions and fresh evidence. Short submissions by the respondent’s counsel were attached to the response. The respondent submitted that the fresh evidence was not probative, did not go to a fact in issue, its relevance had not been demonstrated, and there was no adequate explanation for why it was the subject of an application at that point in time.
The material attached to the application dated 27 May 2016 consisted of:
(a) A statement of the appellant dated 8 April 2016. It referred to an incident when the appellant was walking home on the morning of 7 April 2016. There were two people sitting in a parked car, and another car came around a corner in the vicinity. The appellant said that a glass bottle was thrown from one of the cars (he did not know which) and broke. He believed that it was “a further act of intimidation and harassment” against him.
(b) A Google map of the area in the vicinity of the appellant’s house where the bottle was thrown.
(c) A note of a telephone conversation on 6 May 2016 involving the appellant (I infer) and “Constable Le”. It recorded Constable Le saying that the event would not be investigated as “The bottle was too far – 5 to 10 metres and there is no evidence that I was targeted.”
(d) A copy of a letter from the Honourable Julia Finn, MP dated 28 April 2016, acknowledging a meeting with the appellant on 13 April 2016 regarding the assault of 27 August 2012 “and subsequent actions”.
The appellant’s submissions described the further evidence as going to “ongoing events” and referred to “constant fear for my safety”. He also said he sought leave to “submit more recent medical reports to ascertain the status of my psychological injury and my spinal injury before any future determination of the appeal”.
The material attached to the application dated 27 June 2016 was identical to that attached to the application dated 27 May 2016, except that it also included what was described as a “Record of call from cardiologist … on 18th April 2016 informing me that a report of a suspicious incident had been made to the Australian Federal Police as his premises are under surveillance by the AFP.” There was a copy of a business card from Merrylands Cardiology, which was not clearly legible, attached to the document.
The appellant’s submissions on 27 June 2016, going to admission of the further fresh evidence, said in part:
“Annexure B [the note of a telephone conversation referred to at [104(c)] above] is a record of an incident on 7 April 2016 of violent intimidation and/or attempted grievous bodily harm directed at me and subsequent refusal by the Respondent to investigate, again in breach of the NSW Charter of Victim’s Rights and their standard operating procedures. This is an additional event which has aggravated my anxiety and I submit that the Commission should make an adverse finding in relation to the Respondent if they do not provide an adequate explanation for the refusal to investigate in response to this submission.”
The further submissions of the appellant, dated 27 May 2016 and 27 June 2016, to which the applications for further evidence were attached, were each lodged without leave from the Commission. For the further evidence to be admitted, it would be necessary for the appellant to be granted relief from compliance with the Rules, and for the documents to satisfy the criteria in s 352(6) and Strickland.
The letter from the Honourable Julia Finn MP dated 28 April 2016, and the note regarding a telephone call from a cardiologist on 18 April 2016, can be of no relevance to issues between the parties.
The appellant’s further statement, dated 8 April 2016, the note of a telephone call with Constable Le on 6 May 2016, and the associated extract from Google maps, deals with an alleged incident on 7 April 2016. An unknown person, from one of two possible motor vehicles in the vicinity, was said to have thrown a bottle which broke. The reference to the conversation with Constable Le suggests this happened about five to ten metres away from the appellant, who was walking in the street.
The liability issues between the parties go to whether the appellant suffered psychological injury due to the nature and conditions of his employment, up to a deemed date of 5 February 2013, and/or the incident on 27 August 2012. If so, to the extent to which the injury results from the former, is there a defence pursuant to s 11A(1) of the 1987 Act? The evidence referred to in the preceding paragraph is not of relevance to these issues. It was lodged contrary to Pt 16 r 16.2(4)(c) of the Rules. The interests of justice do not favour dispensing with compliance with the Rules. The interests of justice do not favour admission of this further evidence. The applications to admit further evidence contained in the submissions dated 27 May 2016 and 27 June 2016 are refused.
SUBMISSIONS, DISCUSSION AND FINDINGS
This appeal is governed by the provisions of s 352 of the 1998 Act. The nature and scope of such an appeal is as provided by s 352(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.”
The powers of the Commission upon conduct of such an appeal are defined by the provisions of s 352(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.”
Arbitrator Harris, in the Certificate of Determination dated 3 June 2015, made the following finding, which is not challenged:
“The [appellant] was assaulted on 27 August 2012 in circumstances which fall within s 11 of the Workers Compensation Act, 1987;”
There were three fundamental findings, made by Arbitrator Wynyard (the Arbitrator), which are challenged in this appeal.
The Arbitrator, at [86]–[90] of his reasons, dealt with the consequences of the assault. At [90] he found:
“I am not satisfied that the individual instance of the assault constitutes an independent source of liability against the respondent. It did not cause a post Traumatic Stress Disorder [sic], and did not, within the definition of a disease injury, aggravate his pre-existing condition.”
At [96] the Arbitrator made the following further finding of injury:
“Dr Smith identified that the [appellant] felt that he had been passed over, and it may be that the [appellant], a highly qualified individual, found the work he was asked to do beneath him, which initially caused him frustration, but then escalated into the condition he now suffers. I am satisfied that it was his employment with the respondent that caused the [appellant] to manifest his symptoms. I prefer Dr George’s opinion that the [appellant’s] condition is best described as a delusional disorder secondary to paranoid schizophrenia associated with a major depression. I therefore find that the nature and conditions of the [appellant’s] employment aggravated that condition. Liability is accordingly established pursuant to s 4(b)(ii) and s 16 of the 1987 Act.”
The Arbitrator, at [83] of his reasons, set out the provisions of s 11A(1), (3), (4) and (6) of the 1987 Act. He made the following finding at [84] of his reasons:
“As I indicated earlier, I do not accept that any of the allegations made against the Police Force have been demonstrated to be anything more than reasonable requests in relation to, variously, transfers, demotions, promotions, performance appraisals, discipline or the eventual dismissal of the [appellant]. Many of the accusations pertained to various benefits in the nature of leave, secondment and discretionary refunds. Whilst the onus is on the respondent to establish this defence I am satisfied, as I have indicated, that the various actions taken by the respondent in relation to the matters raised were reasonable. As I explained earlier, I have not dealt with every allegation but have indicated by way of example the answers that the respondent gave to some of the allegations. The fact that the [appellant] labelled these actions to be bullying and harassment does not make it so. I find his evidence to be implausible and lacking in probative value. Indeed, the evidence demonstrates quite clearly the slow deterioration of the [appellant’s] medical condition over the period of time.” (emphasis added)
In light of this factual finding and reasoning, at [97], after making the ‘injury’ finding quoted at [117] above, the Arbitrator found:
“However, for the reasons given, I am satisfied that the respondent has established that the provisions of s 11A apply, and accordingly the [appellant] must fail.”
The appellant challenges the findings described at [116], [118] and [119] above. The respondent challenges the finding described at [117] above, in the event that the appellant succeeds in his challenge to the success of the defence pursuant to s 11A(1) of the 1987 Act. Resolution of the appeal effectively depends on resolution of the challenges to these findings.
The Finding that the Assault on 27 August 2012 Did Not Result in Psychological Injury (Ground 2)
The Arbitrator dealt with the evidence about the circumstances of the assault at [46]–[47] of his reasons. At [48] he said:
“As will be seen in discussing the medical evidence, the [appellant] did not seek any medical attention following the episode – in fact he did not mention it to his GP until 1 November 2012.”
At [53]–[55] the Arbitrator referred to the notes from the appellant’s general practitioner, and quoted the entry from 1 November 2012, which he described as “the first mention of the assault in the clinical notes”. That entry included a passage “… was affected as after he lodged the complaint he was assaulted. That still affects him.”
The Arbitrator referred to reports from Dr Smith, the treating psychiatrist, who recorded a history that the appellant “… reported being assaulted on two occasions outside the NSW Police Force.” He referred to the report of Ms Hidalgo, the appellant’s treating psychologist. He recorded her view that she:
“… diagnosed a Major Depressive Disorder, but following the assault of 27 August 2012 diagnosed further that the [appellant] had suffered a Post Traumatic Stress Disorder (PTSD) with an exacerbation of depressive symptoms as a result of the continued perceived bullying and harassment.”
Ms Hidalgo’s history included reference to the appellant’s belief that he “… perceived the assault as a ‘hit’ by individuals who work for the Police Force”.
The Arbitrator dealt with the reports of Dr George, the psychiatrist qualified by the respondent. He said of the first of those reports (dated 3 April 2013), “[s]ignificantly, Dr George took no history of the assault on 27 August 2012”. Dr George, in his second report (dated 23 July 2014) was asked to comment on the assault, and said:
“In view of his current diagnosis of delusional disorder, I believe that the whole question of his perceptions has to be examined critically. It may well be that he was developing paranoia at this point in time, and therefore his perceptions may well have been distorted.”
The Arbitrator, at [85]–[90], considered the evidence going to the medical consequences of the assault. At [85] he rejected the view of Ms Hidalgo, that the assault led to the condition of Post-Traumatic Stress Disorder. He gave two specific reasons for this. The first was that Ms Hidalgo did not make that diagnosis when she first assessed the appellant on 30 October 2012. The second was that he preferred the views of Dr Smith and Dr George, the two psychiatrists (who did not arrive at that diagnosis) to the view of Ms Hidalgo, a psychologist. He regarded the psychiatrists as “better qualified”.
The Arbitrator considered a further argument made by the appellant, that the assault constituted an aggravation of the psychological disease from which the appellant suffered. In rejecting this argument, the Arbitrator at [88] said that there was:
“… no contemporaneous record that this episode itself caused an exacerbation or aggravation of the psychiatric condition. The first mention of it to his GP was not until 1 November 2012. Dr Fajardo’s note referred to it in passing, and the emphasis appeared to be (as much as can be gleaned from a clinical note) on the fact that the assault occurred after the [appellant] had made a complaint, and it was that fact that still affected him.”
The Arbitrator concluded, from the failure of Dr Smith to mention any assault in his medicolegal report dated 16 April 2014, that he did not regard the assault as being significant. He referred to the view of Dr George (see [125] above). The Arbitrator considered the possibility that the significance of the assault did not immediately occur to the appellant. However, he then referred to the evidence of Constable Thomas, that when he saw the appellant on the night of 27 August 2012, the appellant “was showing no sign of distress”. The Arbitrator specifically accepted that evidence (at [90]). He then made the finding of fact quoted at [116] above.
The Appellant’s Submissions on this Issue
The appellant dealt with this issue in his submissions going to ground number 2, at paragraphs [1]–[7] (pages 25–26 of his submissions, attached to the appeal). He said that he had attended Dr La on 29 August 2012, and was given a referral to a psychiatrist, Dr Teoh. He took sick leave on 28 and 29 August 2012.
The appellant referred also to the statement of Ms Castle dated 14 August 2013 at [12]–[19], which confirmed the contemporaneous reporting of the incident, and associated sick leave. The notes of Dr La confirmed that a medical certificate was issued for 29 August 2012. The appellant submitted that immediately after the assault he sent an email withdrawing the complaint he had lodged two days previously. He submitted that this demonstrated the effect of the assault on him.
The appellant submitted that the above was consistent with the assault either aggravating his psychiatric condition or being a separate injury and source of liability.
The Respondent’s Submissions on this Issue
The respondent referred to attendances on the general medical practice prior to 27 August 2012. On 14 August 2012 the appellant felt that he was being followed, and the doctor noted “paranoid ideation”.
The respondent properly conceded that there was a consultation on 29 August 2012. It submitted that:
“… the referral to Dr Teoh is in the context of the complaints made over various attendances and there is no notation that would support a pathological or physiological reaction to the assault (which the Respondent says ought to be considered simply as an unintentional accident).”
Discussion
Dr La is a member of the same practice as Dr Dias. The records of the practice included the following entry on 29 August 2012:
“Surgery consultation recorded by Dr Nien La on 29/08/2012
alleged assaulted at car park on 27.8.12
got hit on the head and grabbed on his watch
aggravating his anxietyissues discussed
active listeningreferred to psychiatrist
Actions:
Letter to Dr Ben Teoh printed.
Letter written to Dr Ben Teoh re. Specialist referral (window).
Letter printed.
Letter written re: 04 Medical certificate (today)”Ms Castle’s statement dated 14 August 2013 said that the appellant telephoned her on 28 August 2012 at about 7.15 am. He said that he was “knocked over at lunch time on the previous day by a bicycle rider”. He said that he would not be coming in on 28 August 2012. Ms Castle said the appellant returned to work on 30 August 2012.
Passages of the Arbitrator’s reasoning, dealing with the issue of whether the appellant suffered psychological injury due to the assault, are set out above. The Arbitrator’s reasoning placed reliance on the appellant’s failure to seek medical attention, or provide a history of the event to his general practitioner, around the time of the incident. The Arbitrator said there was no contemporaneous record of an aggravation of the psychiatric condition. He relied on (and accepted) the evidence of Constable Thomas that the appellant exhibited no signs of distress on the night of the assault. These factors tended to support the contention that the assault had no significant effect on the appellant’s psychological state, around the time it occurred.
To the contrary, there is acceptable evidence (from the appellant’s general practitioner and Ms Castle, a team leader in the Criminal Records Section of the respondent), that the appellant did not attend work for two days after the assault, that he attended his general practitioner two days after the assault complaining of the incident and of aggravation of his anxiety, and that he was at that time referred to a psychiatrist. The consultation was submitted on at the arbitration hearing (18 August 2015 at T38.30–33).
In Whiteley Muir and Zwanenberg Limited v Kerr (1966) 39 ALJR 505 at 506, Barwick CJ said:
“The trial judge, although not depending in any respect on the credibility of any witness, may have preferred one possible view of the primary facts to another as being in his opinion the more probable. Such a finding may, in my opinion, be disturbed by an appellate court but this should only be done if other probabilities so outweigh that chosen by the primary judge that it can be said that his conclusion was wrong. Again, the trial judge, having found the primary facts, may decide that a particular inference should be drawn from them. Here no doubt the appellate court has more room for setting aside that conclusion. But, even in that case, the fact of the trial judge's decision must be displaced. It is not enough that the appellate court would itself, if trying the matter initially, have drawn a different inference. It must be shown that the trial judge was wrong. This may be achieved by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the trial judge is so preponderant in the opinion of the appellate court that the trial judge's decision is wrong.”
This passage was applied by the High Court in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 30; (1996) 140 ALR 227; (1996) 71 ALJR 29. It was applied in the context of the Commission in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 at [19].
The factual conclusion reached by the Arbitrator overlooked material facts, in particular the evidence of the attendance on Dr La on 29 August 2012 and the history then recorded. This gives rise to appealable error unless it could not possibly have affected the result: Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 at [16], Toll Pty Ltd v Morrissey [2008] NSWCA 197, 6 DDCR 561 at [10]. Having regard to the nature of this evidence, and the Arbitrator’s reasoning dealing with this issue, it clearly could have affected the result.
Ground number 2 is upheld.
How the Matter was Conducted, the Arbitrator’s Findings on ‘Injury’ and the Reasons (Ground 1)
The appellant has appealed against the finding that the respondent established a defence pursuant to s 11A(1) of the 1987 Act. The respondent, whilst supporting the Arbitrator’s finding pursuant to s 11A(1), in the alternative has contended that the finding of ‘injury’ pursuant to s 4(b)(ii) of the 1987 Act was erroneous.
The application of s 11A(1), in the circumstances, is bound up in the ‘injury’ findings. The precise nature of those findings is opaque. For the defence to apply, it is necessary that the relevant psychological injury results, wholly or predominantly, from reasonable action taken or proposed to be taken by or on behalf of the respondent, with respect to one (or more) of the areas of activity described in s 11A(1): Manly Pacific International Hotel Pty Ltd v Doyle [1999] NSWCA 465; 19 NSWCCR 181 (Doyle) per Fitzgerald JA (Mason P agreeing) at [4], Temelkov v Kemblawarra Portugese Sports & Social Club Ltd [2008] NSWWCCPD 96 (Temelkov) at [79].
The pleading of ‘injury’ at Part 4 of the Application referred to “Bullying, Harassing due to nature and conditions of employment”. The date of the alleged ‘disease’ injury was amended, apparently by consent, at the arbitration hearing, to be 5 February 2013. This was described as a “deemed date”, consistent with that allegation being one pursuant to the ‘disease’ provisions of the 1987 Act (29 May 2015 at T5.22–7.5). The allegation of that date of injury persisted (18 August 2015 at T5.6–14).
Arbitrator Harris, at the arbitration hearing on 29 May 2015, made various procedural directions. Those at [3] and [5] of the Certificate of Determination dated 3 June 2015, were:
“3. The Applicant is to provide by 12 June 2015 particulars of relevant events relied upon as causing the psychiatric injury.”
“5. The Respondent is to respond to the [appellant’s] particulars by 1 July 2015 setting out which events are admitted/denied and which events are alleged to raise a defence under s 11A of the 1987 Act.”
On 9 July 2015, the matter came before Arbitrator Wynyard. Exhibit ‘C’ was identified as the document produced by the appellant, “to identify particulars of the relevant events relied on in these proceedings in order to give the respondent an opportunity to meet the case that it was facing.” That was the document “containing 44 particulars” (9 July 2015 at T4.31–5.32). Thus, leaving the recess injury of 27 August 2012 to one side, the pleading was of an allegation pursuant to the ‘disease’ provisions (deemed date 5 February 2013), but the particulars were of a series of 43 specific events alleged to have been causative of the psychiatric injury under the disease provisions. The last 12 of the ‘events’ post-dated the deemed date of injury.
At the arbitration hearing on 18 August 2015, the Arbitrator raised with the respondent’s counsel whether the “44 episodes of bullying and harassment” were allegations pursuant to the ‘disease’ provisions of the 1987 Act. She initially said they appeared to be based on s 4(b)(i) rather than s 4(b)(ii), as there was no evidence of a pre-existing condition (T44.30). She ultimately agreed with the Arbitrator, who suggested “… it’s the aggravation of the pre-existing delusional condition.” (T45.14–16). In either event, it was accepted that they were pleaded on the basis of the ‘disease’ provisions.
The Arbitrator’s reasons at [34] (quoted at [16] above) described the appellant’s allegations “in respect of the particulars” as “implausible” and “lacking in any probative value”. At [52] of his reasons (quoted at [20] above) he said that “all the 44 events that were alleged to be motivated by bullying and harassment, as a question of fact I find not to be made out” (emphasis added). This was consistent with the Arbitrator having rejected the appellant’s case that the events (or any combination of them) were established, and caused psychological injury.
The Arbitrator made the finding at [96] of his reasons, quoted at [27] above. He referred to the views of Dr Smith, and said:
“Dr Smith identified that [the appellant] felt that he had been passed over, and it may be that the [appellant], a highly qualified individual, found the work he was asked to do beneath him, which initially caused him frustration, but then escalated into the condition he now suffers. I am satisfied that it was his employment with the respondent that caused the appellant to manifest his symptoms.”
The Arbitrator accepted the opinion of Dr George that the appellant suffered from a “delusional disorder secondary to paranoid schizophrenia associated with a major depression”. He found an injury by way of aggravation, pursuant to ss 4(b)(ii) and 16 of the 1987 Act.
The Arbitrator apparently rejected the appellant’s case on injury based on the 43 incidents. If this were so, what was the basis of the finding at [96] of his reasons? One possibility was that it was based on the aggravation of a disease, resulting from frustration associated with feeling “passed over”, and being asked to do work which he found to be “beneath him”.
Dr Smith’s report dated 8 November 2012 provided some support for that proposition. It recorded a history that the appellant had “not been successful in obtaining the positions he has desired”. It said he had “felt victimised, harassed and passed over”. The respondent’s counsel referred to that report from Dr Smith, and said “Now, that doesn’t feature at all in this case …” (18 August 2015 at T26.13–14), and:
“… the gravamen of the [appellant’s] complaints to Dr Selwyn Smith, or at least a major factor in the complaints to Dr Selwyn Smith, is that the [appellant] has been passed over for promotion, and that is not an event or events relied on by the [appellant] in these proceedings.” (18 August 2015 at T26.19–24)
The appellant’s counsel made a general submission at the arbitration hearing that:
“… you would have no difficulty accepting, as a general proposition, that but for Mr Kirunda’s employment he would not have this condition.” (18 August 2015 at T35.6–9).
The appellant’s counsel did not make a submission on ‘injury’, to the Arbitrator, based on the appellant being passed over, and asked to do work that was beneath him, which caused frustration, leading to psychological injury. The events set out in exhibit ‘C’ do not go to such an allegation, save arguably for that numbered [19], which referred to the appellant being asked to do menial work on one specific day, 3 November 2011.
If the Arbitrator’s finding of a ‘disease’ injury was based on the matters described at [149] above, this was not how the case was pleaded or presented.
If the finding was of a ‘disease’ injury on this basis, the Arbitrator’s finding based on s 11A(1) of the 1987 Act cannot stand. The Arbitrator’s reasons at [84] effectively decided that the respondent’s actions in respect of all of the “matters raised” were reasonable actions in respect of areas of conduct protected pursuant to s 11A(1). The “matters raised” were those set out in exhibit ‘C’. An ‘injury’ finding, based on the matters referred to at [149] above, was not one of the matters raised in exhibit ‘C’. It had not been relied on in the proceedings (see the submission quoted at [152] above). The Arbitrator’s “reasons given” at [84] did not go to such an allegation of injury.
In Doyle Fitzgerald JA (Mason P agreeing) at [4]–[5] explained the operation of s 11A(1) of the 1987 Act:
“4 … the Compensation Court was required to decide whether (i) the whole or predominant cause of Mr Doyle’s psychological injury was the appellant’s action with respect to Mr Doyle’s transfer from one position to another, and, (ii) if so, whether the appellant's action with respect to Mr Doyle’s transfer was reasonable.
5 Mr Doyle was entitled to succeed in the Compensation Court if either issue identified in the preceding paragraph was decided in the negative. If Mr Doyle established that his psychological injury was not ‘wholly or predominantly caused by ... action taken … by ... [the appellant] with respect to [Mr Doyle’s] transfer’, he is entitled to be compensated although the appellant’s material ‘action’ was ‘reasonable’. Conversely, if Mr Doyle’s psychological injury was ‘wholly or predominantly caused by ... action taken ... by [the appellant] with respect to [Mr Doyle’s] transfer’, he is entitled to be compensated if he established that the appellant’s ‘action’ was not ‘reasonable’.”
If an employer does not establish that the relevant action was the whole or predominant cause of the relevant psychological injury, the defence does not succeed, it does not matter whether the action was reasonable or not (see Fire and Rescue NSW v S [2015] NSWWCCPD 50 (S) at [207]). Thus, if the finding of injury was as postulated at [151] above, one necessary limb of the defence was not made out.
How the Parties Approached the Issue of ‘Injury’ on the Appeal
Notwithstanding that there was a finding of ‘injury’ in his favour, in respect of the “nature and conditions of employment” allegation, the appellant alleged error in the fact finding process on ‘injury’. The appellant said that it was erroneous to “conduct an overview”, rather than to evaluate the specific events and evidence. He submitted there was error by the Arbitrator in setting out “a fraction of the evidence” and then saying that he preferred that of the respondent. It was submitted that the Arbitrator failed to consider relevant documentary material.
The appellant’s submissions going to ground number 1 of the appeal dealt in detail with the allegations set out in exhibit ‘C’. The appellant submitted at length on the evidence and alleged deficiencies in fact finding, amongst other things, in not dealing with evidence or dealing with it inadequately. He referred to Attorney General’s Department v K.
The appellant argued that the Arbitrator should have applied “a legislative or judicial definition of bullying and harassment”. The appellant referred to two decisions in the Fair Work Commission. He referred to material to be found on various websites.
The appellant’s submissions, dealing with ground number 1, challenged the Arbitrator’s findings rejecting the allegations set out in exhibit ‘C’. The appellant’s submissions did not concern themselves with the finding of ‘injury’ which the Arbitrator had made in the appellant’s favour, what the basis of it was, and whether it could stand.
The respondent, in its submissions in the Notice of Opposition, approached the factual findings on the basis that the Arbitrator had found that the “plethora of events complained of that had been made out” aggravated the appellant’s pre-existing condition (those submissions at [27]). The respondent made detailed submissions at [29]–[86] of those submissions, dealing with the attack on the decision made by the appellant. The respondent did not approach the decision on the basis that the finding of injury, involving the aggravation of a disease, was based other than on those matters described in exhibit ‘C’.
How the Parties Approached the Issue of the Adequacy of the Reasons on the Appeal
The appellant referred to authorities dealing with the duty to give reasons, including Pollard v RRR Corporation Pty Limited [2009] NSWCA 110 (Pollard). In Pollard, McColl JA reviewed a number of the authorities going to the duty to give reasons. The appellant quoted at some length from her Honour’s reasons. The appellant’s submissions on the appeal referred to discussion by McColl JA of the judgment of Hayne J in Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 221 ALR 402; (2005) 79 ALJR 1816 (Fitzgibbon), where his Honour at [129]–[130] said (excluding footnotes):
“129. Reference was made in argument to the ‘sufficiency’ of the primary judge’s reasons. When it is said that a judge did not give ‘sufficient’ reasons for a decision there may be some doubt about what principles are engaged. Reference may be being made to the duty of a judicial officer ‘to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate Court if there should be an appeal [including] not only the evidence, and the decision arrived at, but also the reasons for arriving at the decision’. To fail to make or cause to be made such a note may invoke principles of procedural fairness and constitute a failure to exercise the relevant jurisdiction.
130. In the present case, however, reference to the ‘sufficiency’ of the primary judge’s reasons is not to be understood as seeking to invoke only those principles. Rather, because the primary judge was bound to state the reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Understanding the reasons given at first instance in that way, the error identified in this case is revealed as an error in the process of fact finding. In particular, it is revealed as a failure to examine all of the material relevant to the particular issue.”
I note that a Commission arbitrator is obliged to give reasons for his or her decision, in compliance with s 294(2) of the 1998 Act and Pt 15 r 15.6 of the Rules. This includes “the reasoning process that led the Commission to the conclusions it made”: Pt 15 r 15.6(1)(c) of the Rules.
The respondent’s submissions on the appeal referred to relevant authorities on the duty to give reasons, including Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 and Mifsud v Campbell (1991) 21 NSWLR 725. Consistent with these, it was submitted that the Arbitrator was not required to make express findings in respect of every fact leading to his conclusion, that the reasons must be read as a whole, and that reasons need not be lengthy or elaborate. The duty to give reasons depends on the circumstances of the individual case. The respondent submitted that, consistent with these principles, the Arbitrator “provided sufficient consideration of the evidence and more than adequate reasons in support of his decision”.
The respondent submitted that the Arbitrator “accounted for all of the medical evidence that was tendered”, and “had before him references to all the documentary evidence that had been filed in relation to each allegation”. He “determined that the evidence of the Appellant was not probative and did not support the allegations”.
Conclusion
The appellant relied on 43 allegations of specific events (excluding the assault on 27 August 2012), set out in exhibit ‘C’, as causing his ‘disease’ injury based on “bullying and harassment” (the Arbitrator’s reasons at [21]). The Arbitrator rejected the appellant’s evidence going to the specific events in exhibit ‘C’ (reasons at [34]). All of the events were, the Arbitrator found, not made out (reasons at [52]). He made a finding that the appellant suffered from a “delusional disorder secondary to paranoid schizophrenia associated with a major depression”, which was aggravated by the nature and conditions of his employment. This aggravation was found to constitute ‘injury’ pursuant to s 4(b)(ii) of the 1987 Act (reasons at [96]).
There was a finding that none of the allegations made by the appellant “were anything more than reasonable requests in relation to, variously, transfers, demotions, promotions, performance appraisals, discipline or the eventual dismissal of the [appellant]”. The Arbitrator found that “the various actions taken by the respondent in relation to the matters raised were reasonable” (reasons at [84]). He found that “for the reasons given … the respondent had established that the provisions of s 11A apply, and accordingly the [appellant] must fail” (reasons at [97]).
The appellant appealed against the finding that s 11A(1) operated as a defence, against the liability established pursuant to ss 4(b)(ii) and 16 of the 1987 Act.
It is not possible to adequately identify the basis of the finding of ‘injury’ in the appellant’s favour, pursuant to s 4(b)(ii) of the 1987 Act. Having regard to how the matter was conducted, the appellant relied on the events in exhibit ‘C’ as resulting in the relevant injury, pursuant to the ‘disease’ provisions of the 1987 Act. The Arbitrator rejected the appellant’s evidence going to those events, and found that the events were not made out. On the face of it, this is inconsistent with a finding that those events (or any combination of them) caused ‘injury’ by way of the aggravation of a ‘disease’.
The reasons dealt with passages from Dr Smith’s report dated 8 November 2012, which referred to the appellant being unsuccessful in obtaining positions that he wanted, and feeling “victimised, harassed and passed over”. The Arbitrator said “it may be” that the appellant “found the work that he was asked to do beneath him”, and said that he was satisfied that it was the appellant’s “employment with the respondent” which “caused him to manifest his symptoms”. The Arbitrator made a finding of ‘injury’ by way of the aggravation of a disease (reasons at [96]). The basis of this finding is not clearly apparent.
If the basis of this finding was the comment by Dr Smith in his report dated 8 November 2012, this was a basis that was not pleaded, that was referred to by the respondent’s counsel in her oral submissions as not being relied on by the appellant, and that was not the subject of submissions in the appellant’s case.
The Arbitrator’s finding relevant to s 11A(1) was grounded in his reasons at [84], where he said that he did not accept that “any of the allegations made against the Police Force have been demonstrated to be anything more than reasonable requests” in relation to conduct potentially protected by s 11A(1). The only such allegations were the assault on 27 August 2012 (which was irrelevant for the purposes of s 11A(1)) and the events described in exhibit ‘C’. This finding can only relate to the events in exhibit ‘C’.
The Arbitrator’s ultimate finding of fact regarding s 11A(1) was at [97] of his reasons, and was stated to be “for the reasons given”. This could only be a reference to the reasons at [83]–[84]. The finding pursuant to s 11A(1) could only make any sense if the finding of a ‘disease’ injury, by way of aggravation, was based on the events in exhibit ‘C’: Doyle at [4]. However, this would be inconsistent with the specific findings made at [34] and [52] of the reasons. To make contradictory factual findings is “indicative of an erroneous reasoning process” and involves error: Brown v Harding [2008] NSWCA 51 at [31].
The only apparent alternative basis for the finding of ‘injury’, involving the aggravation of a ‘disease’ within the meaning of s 4(b)(ii) of the 1987 Act, was that suggested by the discussion of Dr Smith’s views at [96] of the reasons. However, this would be inconsistent with the finding pursuant to s 11A(1), and inconsistent with the pleadings and how the matter was conducted.
These difficulties led to the curious situation on appeal, that the appellant was challenging the Arbitrator’s reasoning and findings on ‘injury’, notwithstanding that there was an ‘injury’ finding at first instance in his favour. The respondent was, at least in part, defending the Arbitrator’s fact finding and reasons on ‘injury’, notwithstanding that it said that the actual finding of ‘injury’ by way of the aggravation of a ‘disease’ was erroneous.
The appellant referred to a passage in Pollard, in which McColl JA referred to the judgment of McHugh JA in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280C, in which his Honour said:
“A superior court, considering the decision of an inferior tribunal, should not be left to speculate from collateral observations as to the basis of a particular finding: Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 at 701, 713.”
In Mashiati v Australian Poultry Ltd (1995) 11 NSWCCR 345, Clarke JA (Meagher and Sheller JJA agreeing) at 353D and 354C–D said:
“The problem in this case is that the meaning of the passage under examination is completely unclear, whether regarded in isolation or as part of the judgment.”
“This case was an important one from the appellant’s point of view and he was entitled to a judgment based on findings and reasons which enable ‘a proper understanding of the basis upon which the verdict entered has been reached’: Pettit v Dunkley [1971] 1 NSWLR 376 at 382; NRMA Insurance Ltd v Tatt (1989) 94 FLR 339. Although a judge is not expected to deal with every argument put by counsel in the course of a trial, nor with every aspect of the evidence, he or she is obliged to conform with the test which I have just mentioned – at least where there is an available appeal on fact and law.”
Having regard to the reasons given, and the apparently inconsistent findings of fact referred to above, the reasons do not enable a proper understanding of the basis on which the decision was reached. Looking at the reasons given at first instance in that way, the error “is revealed as an error in the process of fact finding”: Fitzgibbon at [130].
The Arbitrator’s finding, that s 11A(1) of the 1987 Act applied as a defence, cannot stand. The Arbitrator’s findings and reasons do not support the necessary element of the defence, that the relevant psychological injury (the cause of which is, on the findings, obscure) resulted wholly or predominantly from reasonable action taken or proposed to be taken by the respondent, with respect to one or more of the categories set out in the subsection: Doyle at [4]; S at [207]; Temelkov at [79].
Even if it were assumed that the finding of ‘injury’ was based on the events in exhibit ‘C’, and that the finding in the reasons at [84] also related to the events in exhibit ‘C’, the finding pursuant to s 11A(1) was not sound. The finding was a global one, purporting to apply to all of the events described in exhibit ‘C’. Some of these events could potentially have been the subject of a defence based on that subsection. It is quite unlikely that all of them were. It is difficult to see that the allegations numbered “1”, “11”, “19”, “20”, “23” and “25” had the capacity to attract the protection of s 11A(1), from the respondent’s point of view. The respondent’s actions, in respect of the appellant’s report of the assault on 27 August 2012, and subsequent related matters, are described at “27” to “31”, “33” to “34”, and “39” in exhibit ‘C’. It is difficult to see how alleged deficiencies by the respondent in this regard, if the allegations were accepted, could be subject to s 11A(1). One of the alleged events, described at “36”, was an action of the insurer.
If the various allegations in exhibit ‘C’ were made out, it would have been necessary to identify which of the causative events were genuinely the subject of s 11A(1), and whether the evidence as a whole, including the medical evidence, supported a conclusion on the probabilities that the psychological injury resulted “wholly or predominantly” from those events.
The respondent submitted that the Arbitrator’s findings (which would include that pursuant to s 11A(1)) were open on the evidence. It contended, in the alternative, that the Arbitrator erred in his finding of ‘injury’ pursuant to s 4(b)(ii) of the 1987 Act.
It is necessary that the finding pursuant to s 11A(1) be revoked. For the reasons given above, it is necessary also that the Arbitrator’s finding of ‘injury’ be revoked.
It is not necessary, in the circumstances, to deal with ground number 3 of the appellant’s grounds, which refers to a failure to apply the decision in Jones v Dunkel [1959] HCA 8; 101 CLR 298.
APPROPRIATE ORDERS DISPOSING OF THE APPEAL
Arbitrator Harris, in the Certificate of Determination dated 3 June 2015, made a finding regarding the assault that occurred on 27 August 2012. That finding has not been challenged in this appeal, and stands.
The parties, in the initial submissions which they lodged in the appeal, requested re-determination of the matter on appeal. Ultimately I have formed the view that it is necessary that it be remitted for re-determination by another Arbitrator. This is associated with a number of factors.
Credit Issues
The appellant submitted that there were no credit issues. This is not so. The appellant’s statements were described by Arbitrator Wynyard as being “implausible, and lacking in any probative value”. Another finder of fact will not necessarily share that view, but it is likely that the appellant’s evidence will require careful analysis in assessing its credibility.
In this regard, I note it was the view of the respondent’s medical expert, Dr George, that the appellant suffered from a “delusional disorder … the whole question of his perceptions has to be examined critically.” Dr George said that the appellant’s “perceptions may well have been distorted” (report dated 23 July 2014). On the other hand Ms Hidalgo, the treating psychologist, said that the appellant “did not display any thought or perceptual disorder and sensorium and cognition were intact (report dated 17 April 2014).
At the arbitration hearing on 9 July 2015 the respondent sought leave to cross-examine the appellant (T15.20–22, 16.29–17.12). The appellant sought leave to cross-examine four of the respondent’s lay witnesses (T20.23–23.22). The Arbitrator gave ex tempore reasons for declining both applications, in the exercise of his discretion (T23.28–25.8). A different finder of fact, on a re-hearing, may or may not share that view regarding whether cross-examination would assist. It would be an issue which would require careful consideration in the overall circumstances of the case.
Subsequent Events
The alleged deemed date of injury is 5 February 2013. The appellant did not carry out active duties with the respondent thereafter. The appellant’s employment was terminated by the respondent on 13 June 2015. The events in exhibit ‘C’ included 12 alleged events which post-dated the deemed date of injury, these ranging from 7 February 2013 to May 2014. These included matters going to the management of his claim, the investigation and associated dealings with the Police Force arising from the assault on 27 August 2012, being followed by a police car, and the service of documents associated with the arrangement of medical examinations.
The appellant has, in the conduct of this appeal, lodged a number of submissions and further documents dealing with additional events. The extent to which such documents were taken into account in determining the substantive issues on the appeal is referred to below.
The appellant lodged submissions in reply dated 23 March 2016. The appellant, in that document alleged that he had developed lumbar spinal pain due to sitting in his house as he was “too anxious to go outside”. He said that his general practitioner had discussed surgery and he was waiting for an initial appointment at a hospital neurological clinic.
The appellant lodged submissions dated 26 May 2016 in which he sought reconsideration of the decisions of Arbitrator Harris and Arbitrator Wynyard (see [32] above). In that document he also included some submissions relating to the appeal (at pages 14–15). He said:
“I seek leave to submit more recent medical reports to ascertain the status of my psychological injury and my spinal injury before any future determination of the appeal.”
The appellant attached a statement dated 8 April 2016 in which he described a further incident. He said that he was walking from his home on the morning of 7 April 2016, when a glass bottle was thrown and shattered on the roadway. He said he believed that this was “a further act of intimidation and harassment by unknown persons” because of his ongoing complaints against the respondent.
The appellant lodged submissions dated 27 June 2016. These referred to the alleged incident on 7 April 2016. They attached largely the same material which had been attached to the submissions dated 26 May 2016, submitting that the material “should be admitted by the Commission”.
On 3 August 2016 the appellant lodged a document headed “Further Submissions Regarding New Evidence in the Appeal Lodged on 12 January 2016”. Documents attached to those submissions included a letter from the Honourable Kevin Anderson MP, Parliamentary Secretary to the Deputy Premier and for Regional Roads and Rail, dated 22 June 2016, to the Honourable Julia Finn MP. This letter related to complaints by the appellant about investigation of the assault of 27 August 2012, and also the alleged incident on 7 April 2016.
The Pleadings
The matter (excluding the assault on 27 August 2012) is pleaded in the Application as a ‘disease’, with a deemed date of injury of 5 February 2013. Consideration needs to be given by the parties to whether this is an appropriate pleading, when a number of the events relied on, in exhibit ‘C’, postdate 5 February 2013.
I also note the passages in Rail Services Australia v Dimovski [2004] NSWCA 267; 1 DDCR 648 at [29] (per Handley JA), [64] and [68] (per Hodgson JA), Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264; 13 DDCR 156 at [25] (per Meagher JA, Ward JA agreeing) and [103] (per Emmett JA, Ward JA agreeing) and NSW Police Force v Kearns [2008] NSWWCCPD 29 at [61]. These decisions deal with the distinction between a “frank injury”, and an injury “arising out of the nature and conditions of employment” (these terms are used in Bindah at [16]).
The extent to which the “events” in exhibit ‘C’, if established, are appropriately characterised as “personal injury” (within the meaning of s 4(a) of the 1987 Act), or as a “disease injury” (within the meaning of s 4(b) of the 1987 Act) was not an issue, and was not addressed by the parties, in the appeal. I express no concluded view on it. It does potentially have practical consequences, going to whether employment needs to be a “main contributing factor” to any injury (s 4(b)) and whether s 9A of the 1987 Act has application. I raise it in passing as something the parties might consider prior to the re-determination in the matter.
The Further Submissions and Evidence Lodged by the Appellant
The appellant lodged multiple written submissions. A number of these (27 May 2016, 27 June 2016 and 3 August 2016) were not lodged pursuant to any timetable set by the Commission. The appellant’s submissions in reply, on 23 March 2016, were lodged pursuant to a Direction issued by O’Grady DP (to whom the appeal was then allocated) dated 4 March 2016. Each of these four sets of written submissions was accompanied by an application to admit fresh evidence. The applications in respect of the earliest three of these are dealt with above. The appeal having been upheld, and the matter remitted for re-determination, it is unnecessary that I deal with the application dated 3 August 2016. On re-determination, different considerations will govern the admission of such evidence, to those which apply pursuant to s 352(6) of the 1998 Act.
The submissions dated 27 May 2016 dealt predominantly with the application for reconsideration, which ultimately was not persevered with. The application to admit fresh evidence contained in those submissions is dealt with above. The submissions at [42]–[45] of that document largely reiterate submissions previously made, dealing with the assault on 27 August 2012. To the extent to which those submissions dealt with the decision in Calman, it has not been necessary to deal with those, having regard to the basis on which the issues on appeal have been resolved, and the order for the re-determination of the matter. The submissions dealing with procedural matters (the adjournment of the arbitration hearing dates and future determination of the appeal on the papers), and the short submissions lodged by the respondent in reply, were taken into account in dealing with those matters.
The further application to rely on fresh evidence, contained in the submissions dated 27 June 2016, is dealt with above. The balance of those submissions dealt essentially with the authority of Calman. It has not been necessary to consider those submissions, given the order for re-determination of the matter.
The submissions dated 3 August 2016 contained a further application to admit fresh evidence, referred to above. The respondent opposed the appellant being granted leave to rely on these further submissions. It has not been necessary to consider them further, given the order for re-determination.
DECISION
The time to appeal is extended to 11 January 2016.
Paragraph [1] of the Certificate of Determination dated 3 June 2015 is confirmed.
The Certificate of Determination dated 25 November 2015 is revoked.
The matter is remitted for re-determination by another Arbitrator.
Michael Snell
Deputy President
11 August 2016
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