Kirunda v State of New South Wales (No 4)
[2018] NSWWCCPD 45
•1 November 2018
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Kirunda v State of New South Wales (No 4) [2018] NSWWCCPD 45 | |
| APPELLANT: | Bill William Kirunda | |
| RESPONDENT: | State of New South Wales | |
| INSURER: | Employers Mutual Ltd | |
| FILE NUMBER: | A2-1183/15 | |
| ARBITRATOR: | Mr P Sweeney | |
| DATE OF ARBITRATOR’S DECISION: | 3 April 2018 | |
| DATE OF APPEAL DECISION: | 1 November 2018 | |
| SUBJECT MATTER OF DECISION: | Appealing an interlocutory decision after final orders: application of Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478; 76 ALJR 828, adjournment application: relevant principles; discretion to permit oral evidence: application of Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34; 4 DDCR 358; actual and apprehended bias, procedural fairness; the use of DSM-IV in dealing with psychiatric evidence: application of New South Wales v Seedsman [2000] NSWCA 119; requirements of expert medical evidence: application of State of New South Wales v Rattenbury [2015] NSWWCCPD 46 and HammondCare v Calka [2016] NSWWCCPD 2 | |
| PRESIDENTIAL MEMBER: | Deputy President Michael Snell | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | Self-represented |
| Respondent: | Bartier Perry | |
| ORDERS MADE ON APPEAL: | 1. The identity of the respondent is amended to “State of New South Wales”. 2. The Arbitrator’s determination dated 3 April 2018 is confirmed. | |
INTRODUCTION
These proceedings involve an allegation by Bill William Kirunda (the appellant) of psychological injury, against his former employer, NSW Police Force (the respondent). The respondent’s identity is misdescribed, and should be the State of New South Wales.[1] The proceedings are amended accordingly. For convenience, I will refer to it as the NSW Police Force/the respondent. The appellant claims weekly payments of compensation, medical expenses, and lump sum compensation in respect of permanent impairment. On this appeal, the appellant challenges an award entered in favour of the respondent, by an Arbitrator, on 3 April 2018. For reasons which follow, the appeal does not succeed.
[1] State of New South Wales v Bishop [2014] NSWCA 354; 14 DDCR 1, [26]–[28].
BACKGROUND
The matter has a lengthy history. It was previously the subject of an award for the respondent entered by a different arbitrator, on 25 November 2015. An appeal by the appellant against that decision was determined by me on 11 August 2016; the appeal succeeded and the matter was remitted for re-determination by a different arbitrator.[2] In a telephone conference convened on the remitter, on 12 October 2016, the arbitrator to whom the matter was then allocated recused himself, on the basis of an allegation by the appellant of apprehended bias. Additionally, the appellant was dissatisfied with the order for remitter made by me on the Presidential appeal. The appeal decision was the subject of two reconsideration applications by the appellant, which were refused,[3] and an appeal to the Court of Appeal by the appellant, which was ultimately discontinued. The matter went into a hiatus during the time the appeal to the Court of Appeal was on foot. The procedural background, up to 2 February 2017, is set out in greater detail in the three previous Presidential decisions.
[2] Kirunda v NSW Police Service [2016] NSWWCCPD 40 (Kirunda).
[3] Kirunda v NSW Police Service (No 2) [2016] NSWWCCPD 49 (Kirunda No 2) and Kirunda v NSW Police Service (No 3) [2017] NSWWCCPD 1 (Kirunda No 3).
When the appeal to the Court of Appeal was withdrawn, the matter was allocated to Arbitrator Sweeney, who conducted three telephone conferences, commencing from 19 July 2017. A listing for arbitration hearing on 17 October 2017 was vacated, to allow the appellant an opportunity to instruct lawyers.[4] The appellant obtained a grant of legal aid and instructed solicitors.[5] The matter was listed for arbitration hearing on 15 December 2017.
[4] Transcript of Arbitration Proceedings of 14 December 2017 (T), T 8.1–6. Kirunda v NSW Police Force (WCC, Arbitrator Sweeney, 10 October 2017, No 1183 of 15, unreported).
[5] The Arbitrator’s reasons for decision attached to the Certificate of Determination dated 3 April 2018 (reasons), [14].
Late on 11 December 2017, the appellant forwarded an email to the Registrar of the Commission, stating that he was withdrawing instructions from the firm of solicitors who were acting for him, and would be seeking an adjournment. On 12 December 2017, the appellant forwarded written submissions to the Commission and the respondent’s solicitors, which in a general sense went to the factual basis of his allegations of bullying and harassment. The subject of the email was described as “WRITTEN SUBMISSIONS – PART ONE”. On 13 December 2017, the appellant forwarded a further email headed “WRITTEN SUBMISSIONS – PART TWO”. In a general sense, this material dealt with medical evidence and legal submissions. Late on 13 December 2017, the appellant forwarded further submissions by email, headed “WRITTEN SUBMISSIONS PART THREE: EVENTS AFTER INJURY”. These submissions lodged on 12 and 13 December 2017 do not appear to have been lodged pursuant to any order or leave by the Commission.
THE ARBITRAL HEARING
At the arbitration hearing on 15 December 2017, the appellant, who holds a Masters degree in Laws and has been admitted as a legal practitioner in New South Wales, appeared for himself. He indicated that he had discharged the solicitors who were acting for him, that he did not “have any more trust in lawyers”, and he needed “to present the case” himself.[6] The respondent was represented by Mr Tanner, instructed by Mr Marsh.
[6] T 7.1–2.
The procedures adopted at the arbitration hearing are an issue in this appeal, and will be dealt with in greater detail below. Briefly, the appellant sought an adjournment, which was opposed and was refused.[7] The appellant was cross-examined, by leave.[8] He gave evidence akin to re-examination, dealing with some matters raised during the cross-examination. The appellant made oral submissions. Consistent with indications given at the arbitration hearing, the Arbitrator issued a Direction dated 18 December 2017:
“1. The applicant may file and serve a signed statement explaining or clarifying any matter arising out of the answers he gave in cross examination by 20 January 2018.
2. The respondent is to lodge and serve by 31 January 2018 written submissions including submissions as to whether the respondent should be permitted to raise the action of ‘transfer’ as part of its defence under section 11A.
3. The applicant is to lodge and serve by 21 February 2018 written submissions in reply including submissions as to whether the respondent should be permitted to raise the action of ‘transfer’ as part of its defence under section 11A by 21 February 2018.
4. At the conclusion of the time allowed for submissions the dispute will be determined by the Commission.”
[7] T 16.15–19.17.
[8] Reasons, [16]–[17].
The appellant, on 20 January 2018, lodged an application that the Arbitrator reconsider his ruling allowing cross-examination. The Arbitrator issued a Certificate of Determination dated 29 January 2018, accompanied by reasons (reconsideration reasons) declining this application.
The Arbitrator said that, at an early telephone conference in the matter, he formed the view (which was communicated to the parties), that given the “complexity of the factual and medical issues” he had “little doubt that cross-examination was appropriate”. He said that he had “re-examined the issue” at the arbitration hearing, given that the appellant had recently discharged his lawyers. The appellant had engaged, at different times, five firms of solicitors in the matter. He had solicitors acting for him until shortly before the arbitration hearing, counsel was briefed, and “the [appellant] made a conscious decision to terminate their services and argue the case himself”. The Arbitrator said that he took the view that the respondent should not be deprived of the advantage of cross-examination, due to the appellant’s lack of representation. He gave the appellant leave to file a statement explaining or clarifying anything arising out of the cross-examination, to ensure the appellant was not prejudiced by the ruling.[9]
[9] Kirunda v NSW Police Force (WCC, Arbitrator Sweeney, 29 January 2018, No 1183 of 15, unreported) (Reconsideration reasons), [1]–[4].
The Arbitrator said that he remained of the view that the leave to cross-examine was “a proper ruling to make in a complex case”. The appellant did not accept the ruling originally and continued to quibble with it at the arbitration. The appellant’s submissions on the reconsideration application were “in the same vein”, and did not provide grounds for reconsideration of the ruling. The Arbitrator additionally said it would be “futile to now make a contrary ruling and strike from the record all of the evidence arising from the cross-examination”. The Arbitrator extended the time available to the appellant to lodge a statement in accordance with the earlier orders, and the associated orders for written submissions.[10]
[10] Reconsideration reasons, [6]–[10].
THE ARBITRATOR’S DECISION
The Commission issued a Certificate of Determination dated 3 April 2018. There was an award for the respondent, on the basis that the appellant had not proved the occurrence of relevant ‘injury’, on the balance of probabilities. The Certificate of Determination was accompanied by 27 pages of reasons.[11]
[11] The reasons.
The Arbitrator referred to his reasons for refusing the appellant’s adjournment application,[12] and for granting the respondent’s application to cross-examine[13]. The Arbitrator referred to clinical notes from the Argyle St Medical Centre, Parramatta, which were forwarded by the appellant to the Commission on 29 March 2018. The appellant indicated he had served this material. The respondent opposed the documents being admitted into evidence. The Arbitrator gave reasons for declining to accept these documents in the circumstances.[14] He referred briefly to the submissions, particularly those of the appellant.[15] The Arbitrator summarised salient points from the statements relied on by the appellant.[16] He summarised the statements from multiple witnesses relied on by the respondent.[17] He set out the table of injurious events drawn up and tendered when the matter was listed for arbitration hearing previously, in 2015.[18] He noted also that the appellant had drawn up a chronology dated 10 July 2015, which referred to “additional incidents”.[19] The Arbitrator summarised the “medical opinion evidence” from Dr Smith (a treating psychiatrist), Ms Hidalgo (a treating psychologist) and Dr George (the psychiatrist qualified on the respondent’s behalf).[20]
[12] Reasons, [8]–[14].
[13] Reasons, [16]–[17].
[14] Reasons, [24]–[30].
[15] Reasons, [31]–[38].
[16] Reasons, [39]–[65].
[17] Reasons, [66]–[88].
[18] See Kirunda, [12].
[19] Reasons, [90].
[20] Reasons, [91]–[102].
The Arbitrator referred to the definition of ‘injury’ in the Workers Compensation Act 1987 (the 1987 Act). He said that it was “unlikely that any of the individual incidents relied upon, with the exception of the assault on 27 August 2012, gave rise to a personal injury”. The appellant’s condition “appears to have come on gradually over months, if not, years”. The Arbitrator quoted from the decision in Military Rehabilitation and Compensation Commission v May[21] at [46]–[47], where it deals with the meaning of ‘injury’. He said:
“If there was a sudden or dramatic or identifiable physiological change caused by any or any combination of the incidents upon which the applicant relies it is not readily ascertainable or identifiable in the psychiatric medical evidence before the Commission. On the contrary, the applicant’s condition came on insidiously over time. Thus, I have primarily approached the matter on the basis of sections 4b(i) or 4(b)(ii) of the 1987 Act.”[22]
[21] [2016] HCA 19; 257 CLR 468 (May).
[22] Reasons, [105].
The Arbitrator referred[23] to State Transit Authority of New South Wales v Chemler,[24] and to the summary of principle in Attorney General's Department v K:[25]
“107. To paraphrase the principles enunciated by Roche DP in Attorney General’s Department v K [2010] NSWWCCPD 76, if events which actually occurred in the workplace are perceived by a worker as creating an offensive or hostile working environment, and a psychological injury follows, it is open to the Commission to conclude that the psychological injury was caused by these events. It does not matter that they affected the worker’s psyche because of a flawed perception resulting from the worker’s disordered mind. Further, it is unnecessary that the worker’s reaction to the events be reasonable or proportionate before compensation can be recovered.
108. Of course, it remains a necessary prerequisite for an entitlement to compensation that a worker’s misperception of events causes or contributes to a psychiatric condition. A worker suffering from a psychiatric condition may misperceive many events encountered in the course of his/her employment by reason of delusional or psychotic thought processes. It does not necessarily follow that such misperceptions have influenced the course of his/her disease. Questions of injury and causation must depend upon the evidence in each case.”[26]
[23] Reasons, [106]–[107].
[24] [2007] NSWCA 249; 5 DDCR 286.
[25] [2010] NSWWCCPD 76; 8 DDCR 120, [52]–[54].
[26] Reasons, [107]–[108].
The Arbitrator turned to deal with the “reliability of the oral and written evidence”. He described the appellant, when cross-examined, as “argumentative and, at times, exasperating”. However, the Arbitrator said that the appellant’s oral evidence did not lead to the conclusion that he was “an unreliable witness”. It was necessary to consider the appellant’s evidence “in the context of the entirety of the lay and medical evidence”. The Arbitrator said that he was “unable to unreservedly accept all that the [appellant] says”. He continued:
“It is impossible to accept the [appellant’s] assertions that agents of the NSWPF [New South Wales Police Force] broke into his garage in 2013, damaged his microwave in 2014, caused him to be intrusively searched at Melbourne airport in 2013, harassed and intimidated him in Hong Kong, and his family at Entebbe airport. There is no documentary evidence to corroborate these assertions. There is no corroborative evidence of any kind in the documents or memory sticks tendered by the [appellant]. Any relationship between these events and the respondent is too far-fetched to be accepted by the Commission.”[27]
[27] Reasons, [109]–[110].
The Arbitrator concluded on this topic:
“Irrespective of the cause of the [appellant’s] psychological illness, it is apparent that he has a distorted perception of reality. One cannot accept his account of events at face value. I do not suggest that the [appellant] has been untruthful. That is not my impression. It is, however, difficult to accept aspects of his evidence where it is not otherwise in accordance with the probabilities. Conversely, there is no reason in this case to reject the evidence of the respondent’s witnesses.”[28]
[28] Reasons, [113].
The Arbitrator engaged in an analysis of the lay and medical evidence. He rejected the appellant’s submission that Dr George’s opinion, regarding the presence of a “delusional disorder”, unrelated to employment, was “invalid or circular”. He said there was an appropriate factual basis for Dr George’s opinion. The doctor had a “lengthy history given by the [appellant] of surveillance and intimidation by the NSWPF over many years”. The history was “perfectly consistent” with the Arbitrator’s understanding of the evidence. No other doctor recorded the history on which Dr George based his opinion. Dr George’s theory was not refuted by Dr Smith or any other doctor. The Arbitrator said he was unable to accept the opinions of Dr Smith or Ms Hidalgo, as they failed “to consider Dr George’s hypothesis or the evidence upon which it is based”. The Arbitrator said that the appellant, although saying he (the appellant) was open to proof to the contrary, had persisted for the last five years in the belief that he was subject to constant intimidation by the respondent. His submissions suggested he “remains strongly of that opinion”. Dr George’s is “a plausible theory which is not grappled with and certainly not contested by any medical practitioner who has treated the [appellant].”[29]
[29] Reasons, [130]–[149].
The Arbitrator then dealt with the assault on 27 August 2012, while the appellant was on a recess. The appellant believed this was “a hit” arranged by the respondent “as retribution for complaints he made at work”.[30] Ms Hidalgo said the effects of this “warranted a further diagnosis of Post-Traumatic Stress Disorder”. The Arbitrator rejected this. Neither Dr Smith or Dr George supported that diagnosis. Additionally, Ms Hidalgo seemed “to uncritically accept allegations of serious impropriety by the NSWP [sic], which the evidence in this case simply does not establish”. The Arbitrator said that whether “there was an identifiable pathological change or the aggravation or exacerbation of a disease on 27 August 2012 is largely a matter for medical opinion evidence from specialist psychiatrists”. The occurrence of ‘injury’ on that date is “doubted by Dr George and not addressed by Dr Smith”. The Arbitrator concluded the appellant had not established that he suffered injury on 27 August 2012.[31]
[30] Reasons, [152].
[31] Reasons, [154]–[157].
The Arbitrator made an ultimate finding of fact:
“The applicant has not proven on the balance of probabilities that he suffered psychological injury caused or materially contributed to by the nature of his employment, the incidents particularised as occurring between 2006 and 20 November 2012 or on an ordinary recess on 27 August 2012. I make an award for the respondent.”
ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions 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. This is the appropriate course in the circumstances.
THRESHOLD MATTERS
There is no issue that the threshold requirements of s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) are satisfied.
Time
The respondent raises an issue regarding s 352(4) of the 1998 Act. The appellant, in Ground No 3 (referred to below) argues about the validity and operation of the s 74 notices relied on by the respondent. The appellant submits the Arbitrator failed to adjudicate on certain matters it raised about the notices. The respondent submits that those matters were the subject of a Certificate of Determination dated 10 October 2017, in which the Arbitrator said that the s 74 notice disputing ‘injury’, issued to deal with the permanent impairment claim, could be relied on to cover ‘injury’ generally, and the admission of Dr George’s supplementary report. The respondent submits the appellant should have lodged any appeal against that order within 28 days of that decision, and is now out of time to appeal that order.[32]
[32] Respondent’s submissions on appeal, [1]–[4].
The appellant, in his submissions in reply, submits that the Arbitrator effectively dismissed his application for summary judgment, but did not finally decide the issue in the earlier orders.
The determination dated 10 October 2017 was clearly ‘interlocutory’, it did not “finally dispose of the rights of the parties”: Licul v Corney.[33] It is not argued otherwise. It would have required leave to be appealed at the time that the earlier order was made: s 352(3A) of the 1998 Act. In Gerlach v Clifton Bricks Pty Ltd[34] the plurality said:
“The proposition that any interlocutory order can be challenged in an appeal against the final judgment in the matter is often stated in unqualified terms. The better view, however, is reflected in the formulation adopted in Spencer Bower, Turner and Handley where it is said that ‘on an appeal from the final order an appellate court can correct any interlocutory order which affected the final result’.” (footnotes omitted, emphasis in the original).[35]
[33] [1976] HCA 6; 180 CLR 213, [11].
[34] [2002] HCA 22; 209 CLR 478; 76 ALJR 828 (Gerlach).
[35] Gerlach, [6].
This authority has been applied in the Commission (see, for example, Whitehead v Kassagrove Pty Limited t/as Moorebank Hotel).[36]
[36] [2007] NSWWCCPD 154, [28].
It follows from the above that the appellant, if he establishes relevant appealable error in the interlocutory decision, can seek that it be corrected in this appeal, which is from the final orders made in the matter.
THE NATURE OF THE APPEAL
The appeal is governed by s 352 of the 1998 Act, subs (5) of which provides:
“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.”
In Raulston v Toll Pty Ltd[37] Roche DP described the nature of such an appeal. In respect of the need to establish error, the Deputy President observed:
[37] [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston).
“19. First, as error now defines the appeal process under s 352, the following principles stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506 (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 140; 140 ALR 227) are relevant (I have substituted ‘Arbitrator’ for ‘trial judge’ where appropriate):
(a)An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if ‘other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong’.
(b)Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the ‘fact of the [Arbitrator’s] decision must be displaced’. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.
(c)It may be shown that an Arbitrator was wrong ‘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 [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong.’
20. The decision of Allsop J (as his Honour then was) in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 (Drummond and Mansfield JJ agreeing) is also instructive in the context of the need to establish error. His Honour observed (at [28]):
‘in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.’
21. After observing that a degree of tolerance for any such divergence in any particular case will often be a product of the perceived advantage enjoyed by the trial judge, Allsop J concluded (at [29]):
‘The appeal court must come to the view that the trial judge was wrong in order to interfere. Even if the question is one of impression or judgment, a sufficiently clear difference of opinion may necessitate that conclusion.’”[38]
[38] Raulston, [19]–[21].
In Northern NSW Local Health Network v Heggie[39] Sackville AJA (Basten and Ward JJA agreeing) said:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable: see Norbis v Norbis [1986] HCA 17; 161 CLR 513, at 518–519, per Mason and Deane JJ.”
[39] [2013] NSWCA 255; 12 DDCR 95.
GROUNDS OF APPEAL
The appellant sets out the following grounds of appeal:
(a) Lack of procedural fairness or bias, in either case resulting in a miscarriage of justice. (Ground No 1)
(b) Failing to consider relevant facts and taking into account irrelevant facts, regarding the medical evidence, and failing to apply relevant legislation and case law correctly. (Ground No 2)
(c) Error in admitting the respondent’s evidence of its defective s 74 notices, and additional medicolegal report, and failing to distinguish between the different claims before the Commission. (Ground No 3)
(d) Failing to identify and adjudicate on late evidence and submissions, and to give reasons for findings. (Ground No 4)
(e) Taking into account irrelevant considerations and failing to take into account relevant considerations, regarding the evidence and submissions generally. (Ground No 5)
(f) Failing to apply Jones v Dunkel.[40] (Ground No 6)
[40] [1959] HCA 8; 101 CLR 298 (Jones v Dunkel).
Although the appellant does not specifically raise failure to give adequate reasons as a ground, he includes a submission that the Arbitrator failed to give reasons for his findings of fact and law, and submits he relies on this submission in relation to “all the grounds”. He quotes a passage from Pollard v RRR Corporation Pty Ltd,[41] which summarises a number of the authorities on ‘reasons’.[42] The grounds of appeal are imprecise and expressed in broad, general terms. Submissions under a given ground frequently raise multiple different issues. The grounds and submissions do not comply with the requirements of Practice Direction No 6. Because of the generality of the grounds, I have predominantly relied on the submissions to identify the matters the appellant seeks to raise.
GROUND NO 1
Lack of procedural fairness or bias, in either case resulting in a miscarriage of justice.
[41] [2009] NSWCA 110, [61]–[66].
[42] Appellant’s submissions on appeal, pp 8–10.
Appellant’s submissions
The appellant raises various issues under this ground. These are:
(a) the Arbitrator’s refusal to grant his adjournment application;
(b) the Arbitrator’s grant of leave to the respondent to cross-examine;
(c) the Arbitrator’s response to the appellant’s statement that he wished to give evidence-in-chief, and
(d) the Arbitrator’s indications that the matter would be struck out, if the appellant did not comply with his rulings regarding oral evidence.
The adjournment application
This issue is confined and it is convenient to deal with it at the outset. The appellant submits that refusal of the application was unfair. His legal representatives had “refused to provide legal advice in breach of their duty up to a few days before the arbitration”. He submits he was “unable to properly present” his case. He submits the Arbitrator referred to earlier statements he had made, that he would not again adjourn the matter, but did not give reasons why the changed circumstances did not justify a short adjournment. He submits the Arbitrator “gives no reasons with reference to my current circumstances”. He argues this was consistent with both a lack of procedural fairness and bias.[43]
[43] Appellant’s submissions on appeal, pp 19–20.
The appellant deals with this issue also in his submissions in reply.[44] He refers to Sali v SPC Ltd[45] and Frugtniet v State Bank of New South Wales[46] as authority that “only in extraordinary circumstances” will an adjournment be refused, where the practical effect is to terminate the proceedings adversely to the applicant for an adjournment. He refers to matters, which may justify an adjournment, as being taken by surprise, and having insufficient time to deal with affidavit material. He submits that short adjournments, “a matter of hours or until the following day, should normally be allowed”, citing Carryer v Kelly[47] and Petrovic v Taara Formwork (Canberra) Pty Ltd.[48]
[44] Appellant’s submissions in reply, p 6.
[45] [1993] HCA 47; 67 ALJR 841.
[46] [1999] NSWCA 458.
[47] [1969] 2 NSWR 769.
[48] (1982) 62 FLR 451.
The respondent refers to the history; the “matter had been on foot for in excess of two years”, it was referred to the Arbitrator following an appeal, the appellant had “dispensed” with legal representatives on prior occasions. The Arbitrator was acting within his discretion. The Commission seeks to “ensure expeditious determination of disputes”. It was open to the appellant to discontinue the proceedings and recommence with representation if he wished. The appellant has, since the arbitration hearing, been “content to represent himself”.[49]
[49] Respondent’s submissions on appeal, [30]–[32].
In making the adjournment application, the appellant said: “I am sure that I will not attempt to obtain legal representation”.[50] The adjournment was not sought for that purpose. The Arbitrator gave extensive reasons for refusing the application.[51] The Arbitrator referred to three bases on which the application was made. The first was to obtain some documents, which had been lodged with the Commission, from his solicitor. The second was to consider obtaining further evidence. The third was to seek leave to “issue a [D]irection for [P]roduction on a medical practice in the hope of obtaining further evidence”.[52] The adjournment application was made at the arbitration hearing on 15 December 2017. The Arbitrator noted he could not allocate it a further date during that year, nor early in the New Year.[53] The Arbitrator referred to the fact that the proceedings had been on foot since 5 March 2015, and said it was not in the interests of justice that a further adjournment be granted.[54] He referred to the history of the matter, and noted that the appellant’s most recent solicitors were the fifth firm he had engaged. He said that adjourning the matter, so that the appellant could explore obtaining further evidence, would delay the matter “for at least months”. The respondent would need an opportunity to respond to any further evidence, it would “be really giving the matter an open-ended adjournment with no clear arbitration date in sight.” He said that he had made it clear on at least three telephone conferences that an adjournment would not be granted. He refused the adjournment.[55] The Arbitrator’s written reasons repeat many of these matters.[56] The Arbitrator previously, during the course of the adjournment application, raised the fact that it was “necessary to consider the public interest … [including] the interest of the Tribunal in disposing of matters in accordance with its model or in accordance with its statutory process”.[57]
[50] T 16.2–4.
[51] T 16.15–19.17.
[52] T 16.16–25.
[53] T 16.25–31.
[54] T 16.33–17.3.
[55] T 17.3–19.17.
[56] Reasons, [9]–[14].
[57] T 14.14–21.
The appellant’s submission that the Arbitrator did not give reasons, having regard to the circumstances at the time the application was made, is incorrect.
A helpful summary of principles governing adjournments is set out in Fire and Rescue NSW v S.[58] The issue involves the exercise of a discretion, and on appeal raises the principles in House v The King.[59] There is a “marked reluctance” on appeal to interfere with such matters of practice and procedure, and it is necessary to have regard to other litigants, the public interest and the efficient use of court resources: Newton v Ellis.[60] It is appropriate that the Commission have regard to the ‘system objectives’ in s 3 of the 1998 Act: Hunter Quarries Pty Ltd v Mexon as Administrator for the Estate of the Late Ryan Messenger.[61] These include prompt treatment and proactive management of injuries, and medical and vocational rehabilitation, to promote the return to work of injured workers, that the system be fair, affordable and financially viable, and that the objectives be delivered efficiently and effectively.
[58] [2015] NSWWCCPD 50, [96]–[99].
[59] [1936] HCA 40; 55 CLR 499 (House v The King), applied in Bauskis v Liew [2013] NSWCA 297, [71].
[60] [2012] NSWCA 106, (per Macfarlan JA, Beazley and Whealey JJA agreeing), [17]–[18].
[61] [2018] NSWCA 178 (per Payne JA, Gleeson JA agreeing), [64]–[65].
The appellant’s situation is not typical of that of an unrepresented litigant, given his legal training. The Arbitrator had previously adjourned the matter to give the appellant an opportunity to seek legal aid and instruct solicitors (see [3] above). The appellant then terminated the retainer of his solicitors shortly prior to the arbitration hearing. He asserts that he was unable to properly present his case, yet he made the adjournment application at the commencement of the arbitration hearing, having made a specific decision to represent himself.
The authorities raised on this issue, in the appellant’s submissions in reply, do not assist him. There was no reason to assume that refusal of the adjournment would lead to termination of the proceedings on a basis adverse to the appellant. It was not submitted to the Arbitrator that this would be the effect of not acceding to the adjournment application. Additionally, it was made clear to the appellant, when the adjournment was refused, that he had the option of discontinuing the proceedings and filing them again when he was ready.[62] Refusal of the adjournment did not, in any ultimate way, have the practical effect of deciding the proceedings adversely to the appellant. I should note also that a short adjournment for “a matter of hours or until the following day” was not an available option, as the Arbitrator’s reasons made clear.[63]
[62] T 21.11–18.
[63] T 16.25–31, 18.29–19.4.
It should be noted that the appellant obtained further evidence from a general practice, Argyle Street Medical Centre (he said in late January 2018) which he forwarded to the Commission on 29 March 2018. The Arbitrator, considering whether this material should be admitted as late documents, described it as “relevant”, but said it did not significantly advance the appellant’s case.[64]
[64] Reasons, [24]–[30].
The Arbitrator took account of various factors, which were properly relevant to the exercise of his discretion. The appellant has not identified injustice that flows from the Arbitrator’s refusal of the adjournment application. He has not demonstrated an appropriate basis to interfere with such a decision on appeal.[65]
[65] House v The King.
The balance of the issues in Ground No 1
The applications regarding evidence-in-chief, cross-examination and the Arbitrator’s rulings regarding the appellant’s reluctance to comply with the evidentiary process, raise issues going to the discretionary power to admit oral evidence, and to obtain compliance with procedural rulings. It is appropriate to deal with them together.
The appellant’s submissions
The appellant’s submissions go to both the leave to cross-examine him, and to the scope of the cross-examination. He refers to the grant of leave, saying the Arbitrator did not give a reason for his insistence on cross-examination. The appellant submits that he had a psychological injury, was self-represented, and was at a distinct disadvantage compared with the respondent, represented by a solicitor and counsel. His credit was not in issue. These factors suggested that cross-examination was “not appropriate”.[66] He refers to cross-examination going beyond things that arose from his statements, arguing there was a “lack of basis” for such cross-examination.[67] He refers to the respondent’s counsel being permitted to cross-examine about his condition up to the present time, yet the appellant says that he was not allowed to give evidence, about matters up to the present time.[68] He submits the Arbitrator coerced him to submit to cross-examination “without any genuine belief that it was appropriate and without legal or procedural basis for doing so”. He submits:
“The evidence suggests that he was determined to give whatever advantage he thought the respondent would gain from cross-examination to my detriment and was effectively engaged in promoting the respondent’s case.”[69]
[66] Appellant’s submissions on appeal, p 6.
[67] Appellant’s submissions on appeal, pp 15–16.
[68] Appellant’s submissions on appeal, p 16.
[69] Appellant’s submissions on appeal, p 18.
The appellant refers to multiple transcript references where he said that he wished to give oral evidence.[70]
[70] Appellant’s submissions on appeal, pp 16–19.
The appellant refers to multiple transcript references, where the Arbitrator indicated he would strike the proceedings out, unless the appellant was compliant with his procedural rulings regarding giving evidence. The appellant submits the threat to strike the proceedings out was without a legal basis and was a breach of procedural fairness.[71]
[71] Appellant’s submissions on appeal, pp 13–15.
The respondent’s submissions
The respondent refers to s 360 of the 1998 Act, pursuant to which any person appearing before the Commission may be required to give evidence. The requirement that the appellant give evidence fell within this power. The appellant was required to answer the questions put to him, and acted “in defiance of a mandatory requirement”. The matter could not be properly determined if he continued to act in breach of s 360. The proceedings could be dismissed pursuant to s 354(7A) of the 1998 Act. It was open to the Arbitrator to strike out the proceedings pursuant to rr 1.6(4) and 15.1 of the Workers Compensation Commission Rules 2011 (the Rules). Rule 1.5(1) also is submitted to be relevant.
The appellant’s submissions in reply
The appellant submits that s 360(2) of the 1998 Act does not include, as a penalty, that a matter will be struck out. It provides a penalty of 50 penalty points for failure to comply. He submits that, where legislation provides a penalty for its breach, no other remedy is available. He refers to Bailey v Bailey.[72]
[72] (1884) 13 QBD 855, 859.
The appellant submits that s 360 refers to information sought by the Commission, not to cross-examination. The appellant submits that cross-examination is “a matter of evidence which is governed by evidence law and not the 1998 Act”. He submits the section “must necessarily be read” as relating to a question put by the Commission, not by one of the parties. The appellant submits there was no question put by the Commission which he refused to answer.
The appellant refers to s 357, which he says draws a distinction between the Commission and a party. The words are used disjunctively in s 357. The Act should be read as a whole. The words should be given the same meaning in s 357 as in s 360 (Craig Williamson Pty Ltd v Barrowcliff[73]).[74]
[73] [1915] VLR 450, 452.
[74] Appellant’s submissions in reply, [11]–[17].
Alternatively, the appellant submits that he had a ‘reasonable excuse’ for failing to comply with s 360. He held an honest belief that the respondent was not entitled to cross-examine him, regarding his capacity since he left work and events postdating his statements, consistent with remarks made by the Arbitrator.[75]
[75] Appellant’s submissions in reply, [18].
The appellant challenges the statutory bases on which the respondent submits the proceedings could have been struck out in the circumstances, s 354(7A)(b) of the 1998 Act and r 15.1 of the Rules. He submits the respondent has not referred to authority on this issue. He submits that the Arbitrator’s lack of reliance on evidence from the cross-examination, in reaching his determination, demonstrates it was not justified, and was “for the improper purpose of giving the respondent an advantage”. He submits the Arbitrator’s threats to strike the matter out without a legal basis, supported “the respondent’s case by effectively forcing me to be cross-examined”.[76]
[76] Appellant’s submissions in reply, [19]–[23].
Legislative provisions
Section 354 of the 1998 Act provides:
“354 Procedure before Commission
(1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2) The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
(4) Proceedings need not be conducted by formal hearing and may be conducted by way of a conference between the parties, including a conference at which the parties (or some of them) participate by telephone, closed-circuit television or other means.
(5) Subject to any general directions of the President, the Commission may hold a conference with all relevant parties in attendance and with relevant experts in attendance, or a separate conference in private with any of them.
(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.
(7) An assessment or determination is to be made by the Commission having regard to such information as is conveniently available to the Commission, even if one or more of the parties to the assessment or determination proceedings does not co-operate or ceases to co-operate.
(7A) The Commission may dismiss proceedings before it before or during the conduct of proceedings:
(a)if it is satisfied that the proceedings have been abandoned, or
(b)if it is satisfied that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, or
(c)for any other ground of dismissal specified in the Rules.
(8) In proceedings before a court with respect to a claim for work injury damages (other than proceedings under section 235A or 235C or under the Crimes Act 1900 with respect to fraud), evidence of a statement made in proceedings before the Commission is not admissible unless the person who made the statement agrees to the evidence being admitted.”
Section 360 of the 1998 Act provides:
“360 Powers of Commission to require evidence
(1) The Commission may require any person appearing before the Commission:
(a)to give evidence on oath or affirmation (and may, for that purpose, administer an oath or affirmation), and
(b)to answer any relevant question put to the person.
(2) A person must not without reasonable excuse refuse or fail to comply with a requirement duly made under this section.
Maximum penalty: 50 penalty units.
(3) A person is not obliged to answer a question under this section if the answer to that question would tend to incriminate the person of an offence.”
Rules 1.5(1), 1.6(4) and 15.1 of the Rules provide:
“1.5 Procedure wanting or in doubt
(1) If a person desires to commence proceedings or take any step in any proceedings, and the manner or form of procedure is not prescribed by the Workers Compensation Acts or these rules, or by or under any other Act, or the person is in doubt as to the manner or form of procedure, the Commission may, on application by the person or of its own motion, give directions.”
“1.6 Adherence to and relief from rules
...
(4) If a provision of these rules is not complied with in relation to the commencement (or purported commencement) of proceedings or conduct of proceedings, the Commission may determine that the proceedings are, or any step taken in the proceedings is, a nullity, in which case the Commission may strike out the proceedings or any such step.”
“15.1 Procedural orders by Arbitrators
(1) Where proceedings are referred to an Arbitrator, the Arbitrator may, while the referral continues, make any order relating to the procedure to be followed in the proceedings (including an order striking out the proceedings or any step in the proceedings) that could be made by the Registrar.
(2) Subrule (1) does not limit any other powers of an Arbitrator.”
Consideration
Leave to the respondent to cross-examine
Aluminium Louvres & Ceilings Pty Limited v Zheng[77] dealt with the Commission’s procedures, including the discretion to allow oral evidence. Bryson JA (Handley JA and Bell J agreeing) referred to the requirements in the Commission that information “be lodged in advance and for statements revealing the cases of parties to be made in advance”. Similar requirements remain in the Rules.[78] His Honour observed that “assumptions upon which common law trials are conducted should not be readily carried over when testing contentions that a hearing before an Arbitrator was not conducted in a fair way”. His Honour continued:
“The environment of contestation and the confrontational methods of the common-law trial would not usually be appropriate; there may be issues of kinds which it is appropriate to deal with in that style, and much is left to the discretion of the Arbitrator. The Arbitrator is in a good position to decide on and to impose appropriate controls on the adduction of evidence, by cross-examination or otherwise.”[79]
And:
“In the present case the Arbitrator was in possession of the material lodged in advance of the hearing by the parties, and was entitled to act on the material. This put her in a good position to make a judgment about whether treatment or further treatment of any issue or line of inquiry in cross-examination was appropriately to be allowed or to be restricted.”[80]
[77] [2006] NSWCA 34, 4 DDCR 358 (Zheng).
[78] Rule 10.3 of the Rules.
[79] Zheng, [25].
[80] Zheng, [26].
His Honour also said:
“The ordinary expectation should reasonably be that every material thing which a witness has to say about the facts will appear in the statement of the witness produced before the Arbitration hearing by the person who relies on what a witness has to say. The Arbitrator no doubt can allow departures from this ordinary expectation …”.[81]
[81] Zheng, [31].
Section 354 confers a broad discretion on the Commission. It is required to apply rules of law in arriving at its decisions, and the rules of procedural fairness.[82] It is not bound by the rules of evidence.[83]
[82] South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16, 4 DDCR 421 (Edmonds), (per McColl JA, Giles and Tobias JJA agreeing), [87]–[91].
[83] Edmonds, [87], Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282 (Sutton), [2], [10].
The appellant submits that the Arbitrator did not give grounds for “his insistence on cross-examination”. Consistent with s 354 of the 1998 Act, and the above passages from Zheng, the Arbitrator clearly had a discretion to permit cross-examination. The respondent’s counsel made an application to cross-examine. It is apparent that this had been previously raised at a telephone conference involving the parties. The Arbitrator gave brief oral reasons for this procedural ruling,[84] which were expanded on in his reasons for decision.[85]
[84] T 51.18–20, 52.32–53.8.
[85] Reasons, [16]–[17].
The appellant’s submissions refer to his lack of legal representation and his psychological injury, as relevant to the appropriateness of the ruling permitting cross-examination. The Arbitrator referred to the lack of representation, in both his oral reasons at the arbitration hearing, and in his written reasons. He did not accept that this was a sufficient basis for declining the respondent’s application. It was a discretionary ruling, and on appeal the principles in House v The King have application. The appellant was legally qualified, with a Masters degree in Laws, admitted in NSW as a legal practitioner, and had at least some experience working with the respondent as an acting legal officer.
The appellant submits that his credit was not in issue. The Arbitrator said “[a]s is often the case in a claim for psychological injury, it is necessary to consider the reliability of the [appellant’s] evidence”.[86] The Arbitrator concluded that the appellant had a “distorted perception of reality”, and that “[o]ne cannot accept his account of events at face value”.[87] The Arbitrator ultimately reached this view on the basis of the appellant’s written evidence, rather than his oral evidence. It is apparent that there was an issue regarding the acceptability of the appellant’s evidence, whether or not this was characterised as a ‘credit’ issue. The appellant submits the fact that the Arbitrator said that nothing in the appellant’s oral evidence led “to the conclusion that he was an unreliable witness”, demonstrates that cross-examination was not justified.[88] The Arbitrator formed his view of the appellant’s reliability on the basis of “his written evidence”, rather than “his oral evidence”. The Arbitrator noted that “Mr Tanner’s cross-examination did not primarily raise issues of credit”.[89] There is no logical basis on which the Arbitrator’s finding about the appellant’s reliability, and his reasons for it, leads to the conclusion the appellant argues for. Cross-examination can have multiple ends, its appropriateness is not necessarily dependent on whether it affects the credit of the witness. It does provide a vehicle to assess a witness’s credibility, which may be affected adversely or positively, depending on the circumstances.
[86] Reasons, [109].
[87] Reasons, [113].
[88] Appellant’s submissions in reply, [22].
[89] Reasons, [109]–[110].
The appellant refers to the Arbitrator’s determination to give advantage to the respondent from cross-examination, when it was without legal or procedural basis. This submission is without merit. It is apparent, from the discussion above regarding s 354 of the 1998 Act and Zheng, that there was a legal and procedural basis for the application. The appellant has not established that there was relevant error in how the discretion was exercised.
The appellant’s application to give oral evidence
The appellant also takes issue with the Arbitrator’s refusal to grant leave for him to give oral evidence. There was an expectation that every material thing, which the appellant had to say about the facts, would be in his statements.[90] The appellant lodged voluminous written material, including statements. It was a matter for the Arbitrator to impose “controls on the adduction of evidence, by cross-examination or otherwise” (emphasis added). The Arbitrator was in possession of the material that had been lodged by the parties, and could consider this in dealing with applications to give oral evidence (see the passages of Zheng quoted above).
[90] Zheng, [31].
The appellant repeatedly expressed disagreement with the proposition that he could be cross-examined, without giving oral evidence-in-chief (see the passages at T 54.5–63.17). The Arbitrator pointed out to the appellant, on a number of occasions, that evidence which, in a conventional evidence based jurisdiction would be given in-chief, in the Commission was in his statements.[91] The appellant repeatedly quibbled with this advice, and cavilled with the Arbitrator’s (correct) ruling that he could be cross-examined by leave, and that he had already put on evidence in statement form.[92] During the course of this, the Arbitrator explored whether there was oral evidence which the appellant sought to give, to supplement what was in his statements. The appellant said that he wanted to give oral evidence about “[w]hat is in [his] statements”, and about “everything that is in [his] submissions”. [93] The following exchange occurred:
“ARBITRATOR: All right. You have given written evidence. What aspect of the case do you want to give oral evidence on?
MR KIRUNDA: Every aspect, everything in my statement I want to give in evidence.
ARBITRATOR: That is in evidence, and unless there is something that you wish to specifically elaborate on, and I’ll give you the opportunity to do that, then I’m not permitting you to give oral evidence-in-chief. I have permitted Mr Tanner to cross-examine you.
MR KIRUNDA: How can someone have leave to cross-examine when leave has not been given to give the evidence-in-chief? On what basis would he be cross-examining me?”[94]
[91] T 54.12–15, 55.8–9, 56.33–57.1, 58.31–59.1, 63.8–10.
[92] T 55.5–6, 55.13–15, 56.1–2, 57.9, 58.25–34, 59.20–22, 59.29, 60.20–22, 62.19–23, 62.33–63.9.
[93] T 57.11–21.
[94] T 59.7–22.
Again, how the Arbitrator dealt with the appellant’s applications to give oral evidence involved the exercise of discretion. The appellant did not seek to supplement his statements in some fashion. Rather, he sought to give unrestricted evidence about all aspects of the matter, that he had already covered in his statements and submissions. He gave no real basis for the application, beyond a repeated assertion that he should be allowed to give evidence-in-chief before he was cross-examined. The appellant has not demonstrated appealable error in the Arbitrator’s exercise of discretion on this issue. How the Arbitrator dealt with the matter was consistent with the decision in Zheng.
Alleged procedural unfairness in the scope of cross-examination and submissions
The appellant’s submissions make complaint about the scope of the cross-examination which was allowed. He refers to certain specific matters.
At one point, the following exchange occurred between the Arbitrator and the appellant:
“MR KIRUNDA: How can someone have leave to cross-examine when leave has not been given to give the evidence-in-chief? On what basis would he be cross-examining me?
ARBITRATOR: He’s examining you on your written evidence. You have given evidence-in-chief, it’s in writing, and I have given Mr Tanner leave to cross-examine on that written evidence.”[95]
[95] T 59.20–27.
The Arbitrator, a little later, said:
ARBITRATOR: All right. Well, I thank you for your objection. I intend to proceed on that basis. So the next step is that we, that I will administer an oath and then I will inquire of Mr Tanner as to what he wishes to cross-examine you on, and then I will give him the opportunity to cross-examine. Indeed it may be best if I ask him initially so we know, but - - -”.[96]
[96] T 62.25–31.
The respondent’s counsel was asked to “put on record what you wish to cross-examine about”. Counsel responded:
“MR TANNER: There are areas which go to the [appellant’s] capacity, his conduct of litigation in various forums, matters which go to the PIRS categories and the various complaints and applications which he has made. Those are – and also the nature of the delusional disorder which Dr George has identified.”[97]
[97] T 64.15–20.
Following an exchange between the Arbitrator and respondent’s counsel going to the scope of the leave, the Arbitrator sought to administer the oath to the appellant. The following was said:
“ARBITRATOR: Do you have any difficulty with taking an oath involving the bible, would you rather take an affirmation?
MR KIRUNDA: I don’t have difficulty with the bible, I’m just – what is – I don’t understand the relevance of ..(not transcribable).. (02.21.14) what is in my statement if that’s the evidence he’s cross-examining on, all that is not in my statement, is it, so why would he cross-examine me on ..(not transcribable).. (02.21.24)
ARBITRATOR: Many of those things arise in the case. Now, I think that Mr Kirunda might be right, Mr Tanner, that most of the things that you referred to don’t arise from his statements at all, but that’s neither here nor there and I can give him the opportunity to cross-examine you and I made a ruling previously.”[98] (emphasis added)
[98] T 66.6–22.
During the course of cross-examination, the following exchange occurred:
MR TANNER: Now, considering your condition at that time, when you say you were incapable of working, going forward has that changed at all or has it been constant?
MR KIRUNDA: I don’t understand.
ARBITRATOR: Are you better or worse than you were then or just about the same?
MR KIRUNDA: How is this related to my statement?
ARBITRATOR: Can you answer the question, sir. Can you answer the question, Mr Kirunda. I will give you no further opportunities.
MR KIRUNDA: I don’t understand. This cross-examination is about my statement. Because if, if I’m given opportunity to give evidence, I will give evidence about what has been happening or what I’m capable. I feel I’m being disadvantaged by being asked a general question without being allowed to give oral evidence.
ARBITRATOR: You will be allowed to give evidence at the end of the cross-examination. You will be allowed to address it by way of an oral statement if you wish or alternatively by way of a written statement that addresses these issues after you’ve seen the transcript. But I’m not going to tell you again because it’s just wasting everybody’s time. I think, look, I can understand that there was some doubt about where Mr Tanner is headed. I am not exactly sure myself. But until we get there it’s important that you answer the questions. And I assume that Mr Tanner will get there reasonably quickly and we’ll understand the relevance of the questioning. But in the meantime if I believe that the question is irrelevant or I believe that it is an inappropriate question, I’ll reject it. But I want you to answer the question. Now, will you agree to do that or not?
MR KIRUNDA: I believe the question is designed to discredit me without reference to the evidence that it ostensibly is testing. If - - -
ARBITRATOR: I’ll give you every opportunity to say that. But - - -
MR KIRUNDA: Well - - -
ARBITRATOR: - - - if you don’t answer the question then we will not get anywhere.
MR KIRUNDA: No, the cross-examination is about my statement because that’s what I’ve been told. My only evidence is the statement.” (emphasis added)[99]
[99] T 77.5–78.26
The appellant refers to the passage quoted at [68] above, and submits that the Arbitrator granted leave to cross-examine, without knowing the basis on which leave was granted.[100] He refers to the passage quoted at [70] above, particularly to the “Arbitrator’s statement that I was to be cross-examined on my statement”.[101] He submits it demonstrates the Arbitrator acknowledging “the apparent lack of basis for cross-examination”.[102]
[100] Appellant’s submissions on appeal, p 18, [77]–[82].
[101] Appellant’s submissions on appeal, pp 15–16, [46]–[49].
[102] Appellant’s submissions on appeal, p 16, [48]–[49].
The passage quoted at [67] above does refer to cross-examination being on the “written evidence”. This was said in the context of the Arbitrator dealing with the appellant’s protestations, that he could not be cross-examined without giving evidence-in-chief. The Arbitrator was explaining a facet of procedure that the appellant repeatedly refused to acknowledge, that statements in writing largely perform the function of evidence-in-chief, in the Commission’s procedures.[103]
[103] Zheng, [31].
The appellant, in the passage quoted at [71] above, asserted that cross-examination had to relate to his statement. The appellant, in his submissions in reply, submits that “[c]ross-examination is a matter of evidence which is governed by evidence law and not the 1998 Act.”[104] This submission is unsupported by authority and is wrong (see [58] above and the authorities there referred to). It is apparent, from the Arbitrator’s remarks in the passage quoted at [70] above, that he (correctly) did not regard the cross-examination as being restricted to matters arising from the appellant’s statements. This was clear when the Arbitrator said to the appellant, “He wishes to ask you questions that may relate to the statements or that may relate to other issues in the case.”[105] It is consistent also with the appellant’s cross-examination, where the appellant sought to restrict the cross-examiner to asking him questions by reference to his statements. The Arbitrator directed him to answer questions that were not referable to his statements.[106]
[104] Appellant’s submissions in reply, [13].
[105] T 54.15–17.
[106] T 68.3–74.14.
An assertion that cross-examination had to relate to a witness’s evidence-in-chief would be inconsistent with the laws of evidence; it is not restricted in that way. In any event, the Commission is not bound by the laws of evidence. There is nothing in s 354 of the 1998 Act, the Rules or relevant authority, that would restrict cross-examination in this way. It is discretionary, and may be restricted by the Arbitrator, depending on the circumstances of the particular case. It is, of course, subject to s 354 and r 15.2 of the Rules. The Commission is required to apply substantive rules of law and principles of procedural fairness.[107] The appellant’s submission, that the Arbitrator acknowledged there was no basis for cross-examination, when he said it was “neither here nor there” whether the areas arose from the appellant’s statements, is based on a misconception of the nature of cross-examination.
[107] Edmonds, [88]–[91].
The Arbitrator’s comment, in the passage quoted at [71] above, that he did not know where the cross-examiner was headed, is not indicative that he granted leave without knowing the basis on which he did so. Leave may be granted to cross-examine on some basis, without it being apparent to an arbitrator precisely how cross-examination will be conducted, or what it ultimately may reveal. The Arbitrator had the respondent’s counsel nominate the areas on which he sought to cross-examine (see [69] above). There was then discussion between the Arbitrator and the respondent’s counsel, regarding the nominated areas. On one of these areas, the Arbitrator said he had “some doubts about that particular category but you might leave that until the end and we’ll deal with it on a question-by-question basis”.[108] It is apparent, from Zheng at [26], that an arbitrator is able to monitor, on an ongoing basis, the course of the evidence, and whether further oral evidence should be allowed or restricted. It is not a requirement that it be mapped out in detail, in advance. The approach that is appropriate will potentially vary depending on the circumstances of the particular case. In Zheng leave was given to cross-examine, and after a period the Arbitrator, in her discretion, declined to allow further cross-examination. She was held not have erred in this course.
[108] T 64.22–65.25.
The appellant also submits that inconsistent approaches were taken by the Arbitrator, to the appellant’s presentation of his case, compared with the basis on which the respondent’s counsel was permitted to cross-examine.[109] The passage to which the appellant refers in his submissions is one in which the Arbitrator explored with counsel what a line of questioning was “leading to”. The appellant submits that the Arbitrator permitted cross-examination on his health, “up to the present time”.[110] The appellant refers to the following passage:
“MR TANNER: I wish to explore whether there has been a variation in the applicant’s condition as he perceives it and experiences it from August 2012 when his symptoms were first the subject of complaints and treatment and so - - -
ARBITRATOR: Up to the present time.
MR TANNER: Well, I can cover that if that canvasses - - -
ARBITRATOR: Can’t you simply ask him that, has there been - - -
MR TANNER: Well, I need a point of departure and that’s what he’s refusing to give me.”[111]
[109] Appellant’s submissions on appeal, p 16.
[110] Appellant’s submissions on appeal, p 16.
[111] T 72.5–20.
A series of questions followed which related to the appellant’s condition, predominantly in 2012 and 2013. The appellant was asked to compare his condition in early 2013 with the present. The appellant said “[i]t’s much worse now.”[112] The appellant was then asked to “take the Arbitrator through the deterioration from February 2013 until the present”, a question the Arbitrator rejected. The appellant was then asked a series of questions going to his capacity for work as a lawyer, other than for the respondent, in early 2013.[113] He was asked about his ability to involve himself in legal work on his own behalf, relating to his workers compensation claim, and proceedings in the Human Rights Commission and the Federal Court.[114] He was cross-examined about a clinical note in August 2012, which suggested he was having difficulty finding alternate employment due to discrimination.[115] The cross-examiner asked questions about the appellant’s ability to carry out legal research and the drafting of submissions, in connection with his Federal Court proceedings (September 2015 to April 2016) and his first Presidential appeal (Kirunda, decided on 11 August 2016).
[112] T 81.11–21.
[113] T 82.1– 87.18.
[114] T 87.27–91.34, 96.9–104.30.
[115] T 92.1–95.6.
The appellant seeks to contrast this with remarks made by the Arbitrator, when the appellant was making oral submissions. He submits the Arbitrator prevented him making oral submissions or giving oral evidence beyond two years after he left work.[116] He refers to two passages. In the first such passage the appellant, making submissions, referred to aspects of his life in 2016 that caused him difficulties.[117] The following was then said:
[116] Appellant’s submissions on appeal, p 16.
[117] T 139.26–140.2.
“ARBITRATOR: Can I just say this, Mr Kirunda. I’m not quite sure whether some of the submissions that you are now making are particularly relevant to the case that I have to decide. I can understand that they may be relevant to other issues but - - -
MR KIRUNDA: Well, I’m, I’m referring to capacity - - -
ARBITRATOR: Yes, I appreciate that. But I assume that the - - -
MR KIRUNDA: The state of my - - -
ARBITRATOR: - - - 130 weeks is past.
MR KIRUNDA: Sorry?
ARBITRATOR: I can only deal with the period of 130 weeks, and if it starts at 5 February, 2013 - - -
MR MARSH: ..(not transcribable).. (4:30:48) 2015.
ARBITRATOR: It would have finished in August 2015. So that’s the only period that I can deal with. I’m limited to 130 weeks. So to some extent the problems that you encounter now are relevant from your point of view and they may be relevant from the point of view of the respondent, but it’s a little way beyond what I am apt to consider. So I would be grateful if you could perhaps limit what further oral submissions you wish to make to the period – if they go to capacity or incapacity for that period up until, say, the end of 2016. I don’t think that you need to say a great deal more about it, but if you wish to you can.”[118] (emphasis added)
[118] T 140.4–141.3.
In the second such passage the appellant, making submissions, was speaking about his experiences dealing with Customs officers when returning to Australia after travelling, and said:
“That was another incident which made me reluctant to come back to Australia and to travel and it’s that worry that you have every time you’re in a situation where you think you’ll be stopped.”[119]
[119] T 143.34–144.3.
The Arbitrator said:
“ARBITRATOR: Can I just say this, Mr Kirunda, this is actually giving evidence about your bodily feelings and about your, the way you perceive the situation. That incident is referred to, I know, on several occasions, and you can address on what legal significance it has, you can address on whether I should accept that it occurred in the way that it did, but I don’t think you can give any further evidence about it.”[120]
[120] T 144.5–12.
To put this into context, the above passages are a little before the Arbitrator’s remark set out in the preceding paragraph. The respondent’s counsel had observed:
“MR TANNER: Arbitrator, I need to make the point that a lot of what Mr Kirunda has been saying during what purport to be submissions is effectively a statement which is evidence which is not before you. And I haven't objected and, I mean - - -
ARBITRATOR: No. I - - -
MR TANNER: - - - on the basis that you’d appreciate the distinction and that I will in my submissions require his case to be confined to the evidence.
ARBITRATOR: I appreciate that, Mr Tanner, but it’s best - - -
MR KIRUNDA: For example - - -
ARBITRATOR: - - - best to allow Mr Kirunda to say what he wishes to say, because this is his last opportunity ..(not transcribable).. (4:32:27)
MR TANNER: I understand that and for that reason I haven’t been objecting as I would otherwise do.”[121]
And:
“MR KIRUNDA: He said I was replying to issues which are not in evidence.
ARBITRATOR: No, I don’t think he quite said that. He said that you were actually giving evidence as to how you felt, what you did. And generally you are not allowed, when you make submissions, to give evidence. You make submissions on the evidence and what’s contained in your statement. We’ve allowed you to go beyond that because I think that you should have the opportunity to put the case that you want to put.”[122]
[121] T 141.5–27
[122] T 142.10–20.
When the second of the passages, on which the appellant relies in this submission, is put in context, it is apparent that the Arbitrator’s remarks have nothing to do with whether the material (be it evidence or submissions) related to periods outside the first 130 weeks of incapacity.
In relation to the first of the passages relied on, the Arbitrator quite clearly referred to the limitation on his jurisdiction, to award weekly compensation outside the first 130 weeks of incapacity. Two points should be made. The first is that the Arbitrator raised the question of what the appellant’s submissions were relevant to, and was informed by the appellant that they went to “capacity”. That is, they were relevant to weekly entitlement. The second point is that, contrary to the appellant’s submission, the Arbitrator did not prevent him making the submissions. Having referred the appellant to the limitation on his jurisdiction, he indicated the appellant could make the submissions if he wished.
The cross-examination referred to at [77]–[78] above was potentially relevant to the parties’ medical cases, and to Dr George’s opinion that the appellant’s condition was essentially constitutional. The way in which the cross-examination was framed also made it relevant to the issue of ‘capacity’ during the first 130 weeks of incapacity. If the appellant remained, in more recent times, capable of legal research and drafting in connection with his own litigation, and if his condition was worse now than when he went off work in February 2013, this potentially supports a submission by the respondent about the extent of incapacity during the first 130 weeks. This is not an acceptance or otherwise of such a submission, simply an observation that the cross-examination going to ‘incapacity’, including the appellant’s abilities beyond the first 130 weeks, could be relevant in that way.
The appellant’s submissions, seeking to identify unfairness in how the Arbitrator dealt with evidence and/or submissions going to incapacity outside the first 130 weeks, are not made out.
Jurisdiction to award weekly compensation outside 130 weeks
The appellant, in his submissions going to Ground No 5, includes submissions that the Arbitrator had jurisdiction to determine weekly payments, outside the first 130 weeks of incapacity. Because the issue has been raised above in connection with Ground No 1, it is convenient to deal with it at this point. The appellant submits the issue was raised in his submissions before the Arbitrator, but “the Arbitrator erred in failing to so adjudicate”. The appellant requests the issue be dealt with in this appeal.[123] There was an obvious reason for why the Arbitrator did not deal with it; the Arbitrator concluded the appellant had failed to prove his case on ‘injury’, so the extent of the appellant’s entitlement to weekly compensation did not arise.
[123] Appellant’s submissions on appeal, p 16, [48]–[49].
The appellant relies on the decision in Inghams Enterprises Pty Ltd v Sok.[124] He also submits that s 38 refers to the “continuation” of weekly payments. He has never received weekly payments, so he submits his payments can neither continue nor cease. Section 38 applies to weekly entitlement during the third entitlement period (beyond 130 weeks). Sok did not involve consideration of s 38 of the 1987 Act. Basten JA (Barrett JA and Sackville AJA agreeing) in Sok specifically observed:
“It is common ground that the claimant, whose entitlement to compensation relevantly commenced on 10 May 2011 is within the second entitlement period.”[125]
[124] [2014] NSWCA 217; 13 DDCR 139 (Sok).
[125] Sok, [49].
The issue of the Commission’s jurisdiction to award weekly payments, pursuant to s 38 of the 1987 Act, was specifically dealt with by the President, Keating DCJ, in Lee v Bunnings Group Limited.[126] After considering the terms of s 38, the President concluded:
“It is clear from the unambiguous terms of s 38 that an entitlement to compensation under that section must be assessed by the insurer, not by the Commission.”[127]
[126] [2013] NSWWCCPD 54; 15 DDCR 82 (Lee).
[127] Lee, [57].
In Jaffarie v Quality Castings Pty Ltd[128] Leeming JA (Macfarlan and White JJA agreeing) dealt with a passage in a Presidential decision which applied the decisions in Lee and Kilic v Kmart Australia Ltd,[129] including a statement in the Presidential decision that “[t]he Commission lacked jurisdiction to award [the worker] weekly compensation in the third entitlement period: Lee at [57].” His Honour, dealing with this part of the Presidential decision, said “I regard the passage reproduced above as entirely correct.”[130]
[128] [2018] NSWCA 88 (Jaffarie).
[129] [2013] NSWWCCPD 37; 15 DDCR 1.
[130] Jaffarie, [38]–[39].
It follows that the appellant’s submission, regarding the Commission’s jurisdiction to award weekly compensation pursuant to s 38, is contrary to both Presidential and Court of Appeal authority, and must be rejected.
The Arbitrator’s indications that the proceedings may be struck out
The appellant gives transcript references to multiple occasions where the Arbitrator indicated that the appellant’s case was at risk of being struck out, if the appellant was not compliant with the Arbitrator’s procedural rulings.[131] The appellant submits he was threatened with his proceedings being struck out, in circumstances where the respondent had made no such application. He refers to Whaley v Upper Hunter Shire Council,[132] submitting that procedural unfairness is made out. He refers to the test for summary dismissal of proceedings in General Steel Industries Inc v Commissioner for Railways.[133]
[131] Appellant’s submissions on appeal, pp 13–15.
[132] [2016] NSWWCCPD 32.
[133] [1964] HCA 69; 112 CLR 125 (General Steel).
I have already concluded that the Arbitrator did not err, in giving leave for the respondent to cross-examine the appellant. The appellant was not compliant with the Arbitrator’s procedural rulings. After being informed by the Arbitrator that an oath was to be administered so that cross-examination could occur,[134] the appellant made repeated applications to give evidence-in-chief. When the Arbitrator did not accede to these, the appellant announced that he did not agree,[135] said “I object”,[136] and made further applications to give oral evidence-in-chief. He announced “I will not accept cross-examination without giving evidence, oral evidence”.[137] The Arbitrator at that point was about to take the luncheon adjournment, and said “Well, then if that’s the case I will strike out your case at 2 o’clock. So you have a think about it.”[138] After the luncheon adjournment, the Arbitrator said:
“ARBITRATOR: All right. Now, to return to where we were before luncheon, one thing I should reiterate, I have made a series of rulings in your matter. It is absolutely essential that you are compliant with my rulings. If you do not comply with my rulings I will strike your matter out. Do you understand that?”
[134] T 53.6–8.
[135] T 55.13–15.
[136] T 56.9, 57.9.
[137] T 60.21–22.
[138] T 60.24–26.
The appellant indicated that he understood, and the Arbitrator explained the procedure. The appellant again made an application to give oral evidence-in-chief.[139] The Arbitrator again urged the appellant not to argue with his rulings, because if he did “this case will be struck out”. The appellant then enquired whether he could make submissions.[140]
[139] T 62.19–63.6.
[140] T 63.26–7.
After being sworn, cross-examination commenced. The passages quoted are moderately lengthy, to convey the flavour of what occurred:
“MR TANNER: Thank you. Mr Kirunda, you say that it was in approximately August 2012 that you experienced psychiatric symptoms.
MR KIRUNDA: Which part of my statement are you referring to?
MR TANNER: I’m asking you to confirm that in August 2012 you were experiencing psychiatric symptoms. Were you or were you not?
MR KIRUNDA: You are cross-examining me on my statement. Please refer to what evidence in the statement you are cross-examining me on.
MR TANNER: Do you not recall your condition in August 2012?
MR KIRUNDA: Please refer to which part of the statement.
MR TANNER: Arbitrator, this is going to be difficult.
MR KIRUNDA: Which statement - - -
ARBITRATOR: I know it’s going to be difficult. I always, I always appreciated that it was doing to be difficult.
MR KIRUNDA: Which statement are you referring to anyway, I have two statements.
MR TANNER: I don’t need to refer to any statement. I’m asking you what your recollection today - - -
ARBITRATOR: Mr Kirunda, I think that it’s best, I will reject the question if I think that it’s inappropriate. I think that it’s best if you answer the questions, otherwise we won’t get anywhere with your case. You simply listen and if you do your best to answer the questions.
MR TANNER: Now, returning to what you experienced in August 2012, do you recall that at that stage you considered yourself to have psychiatric symptoms?
MR KIRUNDA: Please refer me to a statement that I made in my statement and I’ll respond to it.
MR TANNER: I’m referring to the case that you’ve brought here as recorded in your Application to Resolve a Dispute where you record a date of injury in the application as originally filed on 10 and 27 August, 2012. I’m asking you about your recollection of your condition at that time.
MR KIRUNDA: You have referred to a date. I was told you are cross-examining me on my evidence which is limited to my statement. For me to respond to that question identify what in my statement you’re referring to.
MR TANNER: Arbitrator, the witness is refusing to - - -
ARBITRATOR: Now, Mr Kirunda, we have reached the stage where I am very close to striking out your case. All right. Now, what I’m going to do is just take a few minutes. I’m going to give you the opportunity to think whether you want to bring your case or whether you don’t. If you don’t, just keep on behaving as you behaved this morning, if you do, then it would be best to be cooperative and listen to the questions and try and answer them. If they are in any way offensive or if they are in any way harassing or if the questions have no relevance, I will reject the questions and you won’t have to answer them, but unless I do that I think it’s best that you answer the question. I am not going to give you a complete account what questions can be asked, but I don’t think that there is any problem with the question that Mr Tanner has asked, it’s the introductory question, he is entitled to ask it, you’re obliged to answer it. Now, if you don’t, then there is only – or if you don’t answer the succeeding questions, I don’t have any choice, I will have to strike out your case. Now, do you understand the position?
MR KIRUNDA: I understand, Arbitrator. I have an objection to that interpretation of it. I have not been given leave to give oral evidence and I’ve been told that the only evidence - - -
ARBITRATOR: I have given you leave to address the oral evidence, you can give oral evidence in reply, what I haven’t given you leave to do is to give oral evidence-in-chief, and that is because when workers come to this jurisdiction their evidence is recorded in statement form. Your evidence is recorded in statement form. There is, as I understand it, no need to elaborate on that evidence. As I understand it there is no new evidence that needs to be adduced, and in those circumstances I have given Mr Tanner leave to cross-examine. Now, you are still quibbling with my ruling. You are still not compliant with my ruling. It can only go on for so long. I hope you appreciate it. If you wish your case to be discontinued, say so and I can do it at the drop of a hat, but otherwise, please answer the questions.
Mr Tanner, can you ask it again?
MR TANNER: Mr Kirunda, I’m asking you to recall your psychological condition in August 2012. Now, casting your mind back to that time can you indicate to the Commission what your symptoms were.
MR KIRUNDA: I’m not a doctor, I’m - - -
ARBITRATOR: He’s not asking you what - - -
MR TANNER: I’m not asking you for a diagnosis.
MR KIRUNDA: Arbitrator, he’s asked me a question what were my symptoms.
MR TANNER: I’m not asking you for a diagnosis, I’m asking you for your symptoms, in other words, how did you feel.
MR KIRUNDA: Which part of my statement are you referring to? You’re cross-examining me on my evidence, please refer me to the statement.”[141]
[141] T 67.30–71.22.
The affidavit sworn/affirmed on 29 January 2018, in these proceedings, described itself as “in response to the cross-examination I was subjected to regarding my capacity to work”. The appellant submits that, in his email dated 2 February 2018, he sought that the affidavit be admitted into evidence, and this was “not identified or adjudicated on”.[281] The affidavit referred to cross-examination on whether he now felt worse than when he stopped work in February 2013. The appellant referred to the contents of other documents he had previously lodged. He referred to his attempts to obtain legal representation, and why he did not initially pursue a claim. Two affidavits sworn by the appellant in his proceedings in the Federal Circuit Court of Australia, dated 3 September 2015 and 29 April 2016, were annexed.
[281] Appellant’s submissions on appeal, p 47.
The affidavit referred to difficulties the appellant said that he experienced, in pursuing his case in the Federal Court. It referred to incidents which aggravated the appellant’s condition after 10 August 2012. It stated these were referred to in the chronology in AALD dated 31 August 2017. He referred to the submissions referred to at [242] above. He referred to attempts he had made to obtain assistance and legal advice about his claim. The affidavit of 3 September 2015, in the Federal Court proceedings, referred to being stalked and intimidated by persons unknown, and relocating to Queensland and then Uganda. It referred to difficulties completing a statement to support the compensation claim. It revealed the Federal Court proceedings were dismissed “for non-appearance on 18 February 2015”. It appears this affidavit was to support an application to set aside that order. The affidavit of 29 April 2016 in the Federal Court described ongoing psychological symptoms, and also back pain. It described financial difficulties and medical treatment.
Some of the material in the affidavit sworn/affirmed on 29 January 2018 (not all) arose from the cross-examination, and fell within the Arbitrator’s order giving the appellant leave to lodge a statement. One can well understand how the affidavit could have been missed, it being lodged by email on 2 February 2018, in concert with a raft of other documents. These included submissions which were outside the orders made by the Arbitrator, an “addendum” to a statement (which was not part of a statement at all) but further submissions, and lengthy submissions (described as written submissions parts one, two and three) which were lodged for the second time.
The Arbitrator did not, in his reasons, deal with the appellant’s application to admit the affidavit. It is not referred to in the decision as part of the documents before the Commission.[282] The Arbitrator was not under an obligation to refer to each piece of evidence before him.[283] However, the failure to refer to the affidavit, not only in the Arbitrator’s reasoning process, but also in the description of the documentary evidence before him,[284] suggests that it was not considered. It is error in the process of fact finding to fail to consider evidence relevant to an issue.[285] Is this appealable error in the circumstances?
[282] Reasons, [20].
[283] Ainger v Coffs Harbour City Council [2005] NSWCA 424, [48].
[284] Reasons, [20]–[30].
[285] Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816, [130] per Hayne J (McHugh and Gummow JJ agreeing).
The respondent, referring to the additional material that the appellant sought to put into evidence, submits:
“In any event, the additional material had no bearing on the basis upon which the matter was determined, i.e. that the appellant had a delusional disorder, and did not receive a work-related compensable injury. The matters traversed in cross-examination did not to any material extent affect the basis upon which the matter was determined by the Arbitrator, and documents which the appellant sought to tender after the hearing were therefore immaterial to the determination.”[286]
[286] Respondent’s submissions on appeal, [54].
The appellant does not address the issue of whether this error affected the result.
In Ljubicic, Basten JA said:
“The interrelationship of ss 353 and 354 [of the 1998 Act] demonstrate that the Deputy President was bound to apply legal principle, including the terms of the relevant legislation and any general law principles relevant to the application before him: see Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 at 29-30 (Gleeson CJ and Handley JA) and 40-41 (Kirby P).”[287]
[287] Ljubicic, [10].
In Gerlach the plurality, dealing with the nature of appealable error, said:
“It is necessary to make the qualification, ‘which affected the final result’, at least to reflect the well-established principle that a new trial is not ordered where an error of law, fact, misdirection or other wrong has not resulted in any miscarriage of justice.”[288]
[288] Gerlach, [7].
In Conway v The Queen[289] the plurality, after reviewing the practice in New South Wales, said:
“… it seems clear enough that at common law a new trial would not be ordered in a civil cause if the error – whatever it was – could not reasonably be supposed to have affected the result of the trial.”[290]
[289] [2002] HCA 2; 209 CLR 203; 186 ALR 328; 76 ALJR 358 (Conway).
[290] Conway, [29].
In Walshe v Prest[291] Basten JA (Giles JA and Campbell AJA agreeing) said:
“The principle that the Court should not order a retrial, even where error has been demonstrated in the proceedings below, unless ‘some substantial wrong or miscarriage has been thereby occasioned’ is now to be found in Part 51, r 23 of the Supreme Court Rules. As noted in Conway v The Queen [2002] HCA 2; (2002) 209 CLR 203 at [27] and [28] the principle derives from the general law and is consistent with long-standing practice in civil cases at common law in New South Wales.”[292]
[291] [2005] NSWCA 333 (Walshe).
[292] Walshe, [27].
In Workers Compensation Nominal Insurer v Al Othmani,[293] an appeal from the Commission, Bathurst CJ (McColl JA agreeing) said:
“The critical question, however, is whether the errors infected the Presidential member’s ultimate conclusion; that is whether they were operative errors in the sense discussed by Basten JA in Akora Holdings Pty Limited v Ljubicic [2008] NSWCA 339.”[294]
[293] [2012] NSWCA 45; 10 DDCR 290 (Al Othmani).
[294] Al Othmani, [92].
The error, in failing to consider the relevant affidavit, has not resulted in a miscarriage of justice and could not have affected the result. The result flowed from the Arbitrator’s assessment of the weight to be given to the appellant’s medical case, in circumstances where Dr Smith and Ms Hidalgo did not address the views of Dr George, and the full history on which those views were based, regarding the diagnosis of a delusional disorder. I accept the respondent’s submission that “the additional material had no bearing on the basis upon which the matter was determined”.
The submissions lodged in March 2018
The appellant submits he lodged submissions, “including annexures”, on 15 and 18 March 2018 which were “not identified and adjudicated upon”.[295] Other than asserting they were lodged “in accordance with the [A]rbitrator’s directions”, his submissions do not expand on these documents.
[295] Appellant’s submissions on appeal, p 47.
The material lodged in March 2018 included the appellant’s submissions in reply, lodged by email on 7 March 2018. The submissions actually appeared twice in the email. These submissions dealt at some length with the evidence of Dr George, including an argument based on whether that doctor’s reasoning was “circular”, and the definition of “bizarre” delusions in DSM-IV and some dictionaries. It referred to a number of newspaper articles, which were annexed, and sought that these be admitted into evidence. The Arbitrator dealt with the appellant’s written submissions, apparently these submissions, and Dr George’s evidence, in his reasons at [138]–[149].
The appellant lodged a further email dated 14 March 2018. Notwithstanding its date, it stated that it had as attachments “SIGNED REPLY TO RESP SUBS.7 MARCH 2018.pdf; FURTHER SUBS.18 MARCH 2018. pdf”. It attached the same submissions and annexures as had appeared twice previously in the material lodged on 7 March 2018. It additionally included three pages of “Further Submissions”, under the heading “Capacity”. These appeared twice. The second of the versions was signed, and dated 14 March 2018. Much of it referenced previous evidence. The material is difficult to follow, and did not include further submissions dated 18 March 2018. I have checked the Commission’s electronic record of lodged documents, and it does not indicate that additional submissions were lodged on either 15 or 18 March 2018. The appellant’s reference to submissions dated 15 March 2018 may be to the submissions dated 14 March 2018. The reference to submissions dated 18 March 2018 may come from the reference to a document of that date, in the emailed submissions dated 14 March 2018. In any event, documents dated 15 and 18 March 2018 do not appear in the Commission’s record of lodged documents. It does refer to documents lodged on 7 and 14 March 2018, referred to above. It additionally refers to material lodged on 29 March 2018. This was clinical notes from the Argyle Street Medical Centre. The appellant’s application to rely on this late evidence was dealt with in the Arbitrator’s reasons at [24]–[30].
Submissions dated 15 and 18 March 2018 cannot be adequately identified. The appellant did not have leave to lodge more than one set of submissions in reply, and these appear to be his submissions dated 7 March 2018, which the Arbitrator dealt with. Any further submissions would have been lodged without leave, and it was appropriate that they not be considered.[296] The appellant has made no submission regarding the content of any such submissions, or the basis of any submission that failure to deal with them was productive of appealable error.
[296] Bale v Mills [2011] NSWCA 226, [57]–[61]; Volkswagen Financial Services Australia Pty Ltd v Mokohar [2016] NSWWCCPD 13, [14]–[15].
For the above reasons, Ground No 4 fails.
GROUND NO 5
Taking into account irrelevant considerations and failing to take into account relevant considerations, regarding the evidence and submissions generally.
Appellant’s submissions
The appellant refers to the Arbitrator’s reasons at [110]–[113] (set out at [172] above). The Arbitrator referred to various incidents as “too far-fetched to be accepted by the Commission”. He described the appellant as having “a distorted perception of reality”, and said it was “difficult to accept aspects of his evidence where it is not otherwise in accordance with the probabilities”. The appellant submits the Arbitrator “asked himself the wrong question”. The Arbitrator asked whether he could unreservedly accept the allegations, whether there was a relationship between the events and the respondent, and whether there was a rational basis for the allegations. He should have asked whether the events actually happened, what effect they had on the appellant, and whether such events might lead an ordinary person to have the suspicions and beliefs the appellant had, as opposed to delusions. The question was not whether the respondent was behind the events.[297] The Arbitrator had identified, in his reasons at [107], that it is unnecessary for a worker’s reactions to events to be “reasonable or proportionate”. When the Arbitrator said that “none of the material establishes that there might be a rational basis for the [appellant’s] allegations”, this was “an irrelevant consideration”. The appellant submits “surveillance by insurance companies and assault of police employees is common knowledge in the public domain which is a rational basis to suspect that the same could happen to me and therefore not delusional”. [298]
[297] Appellant’s submissions on appeal, p 48.
[298] Appellant’s submissions on appeal, p 49.
The appellant refers to the Arbitrator’s discussion at [124] of his reasons, where he said the evidence did not suggest that Ms O’Shea “bullied” the appellant. The appellant submits this was not the question. He refers to the application of State Transit Authority of New South Wales v Chemler[299] in Rattenbury, where the Deputy President, discussing the use of the phrase “bullied and harassed”, said:
“… the question is whether real events occurred at work that Mr Rattenbury perceived as creating such an environment and whether they caused a psychological injury. The short hand or global term used to describe those events is of little, if any, relevance.”[300]
[299] [2007] NSWCA 249; 5 DDCR 286 (Chemler).
[300] Rattenbury, [59].
The appellant refers to the reasons at [116], where the Arbitrator referred to an allegation that Ms Thompson removed a document from the appellant’s desk in 2006 without his permission, as a “seemingly innocuous incident”. He refers to a passage at [125] of the reasons, where the Arbitrator described some of the allegations about Mr Gaha’s behaviour, and said “seemingly innocuous actions are given a sinister interpretation”. The appellant relies on a passage from Inman where Roche DP said:
“This involved two errors. First, it does not matter if the event to which the appellant reacted was ‘relatively innocuous’. Employers take their employees as they find them (Chemler per Spigelman CJ at [40]) and a perception of real events can satisfy the test of injury arising out of or in the course of employment (Chemler per Spigelman CJ at [54]). If conduct which actually occurred in the workplace was perceived as creating an offensive or hostile working environment, and a cognizable injury followed, it is open to the Commission to conclude that causation is established (Chemler per Basten JA at [69]). So long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (Leigh Sheridan v Q-Comp [2009] QIC 12; 191 QGIG 13).”[301]
[301] Inman, [226].
The appellant submits it was irrelevant that these events may have been innocuous.[302]
[302] Appellant’s submissions on appeal, p 51.
The appellant refers to passages at [116] and [118] of the reasons where the Arbitrator referred to a failure by the appellant to seek medical treatment. He refers to Rattenbury, where the Deputy President described a failure to seek medical treatment as “not fatal” to a worker’s claim.[303]
[303] Rattenbury, [92], referred to in appellant’s submissions on appeal, p 51.
The appellant states that the Arbitrator erred in describing his employment as running from 2006 to 5 February 2013, as his termination letter stated that he was employed to 30 June 2015.[304] He submits it flows from this that “all the events … up to this date, are pleaded as aggravating my injury while still an employee of the respondent”.[305]
[304] AALD 10.9.15, p 20.
[305] Appellant’s submissions on appeal, p 52.
The appellant submits the Arbitrator erred in his description of events, at [153] of his reasons, where he said that the appellant’s perception of the incident on 27 August 2012 may have been “a manifestation of a delusional disorder”. The assault was “a real, verified event”, and therefore could not have been a delusion as clinically defined. He submits the Arbitrator erred in referring to the appellant’s “belief that his employer arranged to dispose of” him, saying his belief was always that the assaults “could have been instigated to intimidate me into abandoning my claims”.[306]
[306] Appellant’s submissions on appeal, p 52.
The appellant submits the Arbitrator failed to refer to “the most distressing events complained of”, the temporary disappearance of a file. He refers to his statement dated 22 February 2013 at pages 350 to 352 of the ARD. The appellant at [4.12]–[4.20] of the statement refers to difficulties with this, and states that it caused “a lot of anxiety and loss of trust”.
The appellant submits there was error in the Arbitrator’s refusal to give him leave to amend the particulars in the ARD, to claim weekly compensation from August 2012.[307] The reason for this, that the claim had been previously amended, was “not a valid reason”.[308]
[307] Reasons, [37].
[308] Appellant’s submissions on appeal, p 53.
The Arbitrator, in his reasons at [125]–[127], referred to the allegations relating to Mr Gaha, and two notes made by the appellant about Mr Gaha’s behaviour, on 23 August 2012. The Arbitrator said “Precisely why these events required recording is not clear.”[309] The appellant refers to his emailed submissions dated 13 December 2017, and submits he interpreted Mr Gaha’s physical presence as “intimidating”, and thought Mr Gaha “might have been involved in the conspiracy to procure my assault after I was assaulted on 27 August 2012.” He submits he recorded the events because he perceived the “workplace situation as hostile with the possibility that I would have to prove what had happened”.[310]
[309] Reasons, [127].
[310] Appellant’s submissions on appeal, pp 53–54.
The appellant refers to Mr Antrum’s statement,[311] in which Mr Antrum dealt with the issue of reimbursement of the cost of the appellant’s practising certificate. He submits that proof of the respondent’s policies was not provided to him, and contradictory reasons given by “different managers” (Mr Antrum as opposed to the appellant’s manager at the time) meant the respondent had “not discharged their onus of proving that it was reasonable”.[312]
[311] Reply, p 168.
[312] Appellant’s submissions on appeal, p 55.
The appellant submits that all events after 10 August 2012 (should that be found as the deemed date of injury) or after he “ceased work” on 5 February 2013, should have been found to be aggravations of his injury. He refers particularly to Calman.[313]
[313] Appellant’s submissions on appeal, pp 55–56.
The appellant, under this ground, also makes submissions that the available weekly award was not a closed period. He refers to Sok.[314] This issue has already been dealt with above, under Ground No 1, at [87]–[91].
[314] Appellant’s submissions on appeal, pp 56–58.
Respondent’s submissions
The respondent submits that, under this ground, the appellant simply seeks to re-argue the merits of the matter, rather than make out a case of error pursuant to s 352 of the 1998 Act. The appellant was himself the author of the version of events, that he was subjected to surveillance and interference by people who were either members of the respondent, or acting on its behalf. “It was plainly the appellant’s case that he considered that persons associated with the respondent posed a threat to his safety”. The Arbitrator “evaluated that evidence, and reached conclusions that were open to him”, supported by Dr George, and not contradicted by any countervailing medical opinion.[315]
[315] Respondent’s submissions on appeal, [57]–[59].
The respondent submits the submissions under this ground involve “various immaterial complaints” that fail to address the “substantive elements” which were “the foundation upon which the matter was decided”. Those foundation elements were:
(a) Dr George recorded evidence of “bizarre, paranoid and delusional thoughts”;
(b) Dr George diagnosed a delusional disorder that was not work related;
(c) the appellant repeated the bizarre, paranoid and delusional thoughts in the course of the proceedings;
(d) the appellant tendered no evidence to challenge Dr George’s diagnosis, and
(e) the appellant relied on the expert evidence of medical practitioners, including Dr Smith, who had not taken a history of the bizarre, paranoid and delusional thoughts, and who offered no opinion to contradict that of Dr George (who had a full and relevant history).
The respondent submits that the appellant’s submissions going to entitlements to weekly compensation are irrelevant, given his failure on the issue of ‘injury’.
The appellant, in his submissions in reply, submits that the respondent has not addressed many of the points the appellant made under this ground.
Consideration
The respondent’s submission, regarding the basis on which the appellant’s case on ‘injury’ was not accepted, is correct. The appellant carried the onus, on the probabilities, of establishing ‘injury’ within the meaning of s 4 of the 1987 Act. The expert opinion evidence in the appellant’s medical case consisted of Dr Smith and Ms Hidalgo. The parties’ medical cases, and the Arbitrator’s analysis of them, are dealt with at length above, in the consideration of Ground No 2. The difficulty with the appellant’s arguments in Ground No 5 is illustrated by a passage of Rattenbury on which he relies:
“It is of no consequence that the Arbitrator did not accept that Mr Rattenbury had been ‘bullied or harassed’. That expression is no more than a short hand method of describing events at work that are perceived by the claimant to have created a hostile environment. Consistent with Chemler, the question is whether real events occurred at work that Mr Rattenbury perceived as creating such an environment and whether they caused a psychological injury.”[316] (emphasis added)
[316] Rattenbury, [59].
It does not assist the appellant to establish the presence of real events, that he perceived as creating a hostile environment, unless he can also prove that this caused a psychological injury. This was recognised by the Arbitrator, who in his reasons at [108] said:
“Of course, it remains a necessary prerequisite for an entitlement to compensation that a worker's misperception of events causes or contributes to a psychiatric condition. A worker suffering from a psychiatric condition may misperceive many events encountered in the course of his/her employment by reason of delusional or psychotic thought processes. It does not necessarily follow that such misperceptions have influenced the course of his/her disease. Questions of injury and causation must depend upon the evidence in each case.”
Proof of such an injury in the present case, given its factual and medical complexities, was clearly not something that could be established on the basis of common knowledge and experience, it required expert medical evidence (see [136] above). The Arbitrator, for reasons which he explained, and which are considered above, did not accept the opinion evidence of Dr Smith and Ms Hidalgo. This left a situation where, whatever view one took of the evidence of the relevant events and the appellant’s perception of them, the appellant could not prove that they caused a psychological injury. The effect of this was that the appellant’s claim failed as he could not prove ‘injury’.
The respondent’s submission is correct, the appellant’s submissions in support of this ground are immaterial to the result. The appellant’s case on ‘injury’ could not succeed, given the Arbitrator’s analysis of the medical evidence. The Arbitrator’s factual findings flowing from the analysis are at [144], [145], [157] and [158] of his reasons. The effect of these findings is that the appellant cannot prove that the events on which he relied, and his perception of them, caused a psychological injury. It follows that the errors allegedly identified in this ground, if established, would not give rise to a substantial wrong or miscarriage of justice (see [249]–[253] above, they would not represent appealable error. Ground No 5 must fail.
GROUND NO 6
Failing to apply Jones v Dunkel.
Appellant’s submissions
The appellant refers to Johnston v State of New South Wales,[317] a decision of Schmidt J in which her Honour drew Jones v Dunkel inferences. Her Honour described the circumstances for drawing such an inference and the nature of the inference:
“62. Those principles are concerned with a party’s unexplained failure to give evidence or call a witness, where it would be natural for that evidence to be led, or where the party might reasonably be expected to lead that evidence. In RHG Mortgage Limited v Rosario Ianni [2015] NSWCA 56 at [75]–[96] the three relevant considerations were identified to be: first, that the missing witness would be expected to be called by one party rather than the other; secondly, that this evidence would elucidate a particular matter; and thirdly, that the absence is unexplained.
63. When those conditions are satisfied, the inference that the evidence would not have helped the party’s case may be drawn. That inference can then be used in two ways. First, in deciding whether to accept any other evidence given, whether for or against that party, which relates to a matter about which the person not called could have given evidence. Secondly, in deciding whether or not to draw inferences of fact which are open, about matters that person could have given evidence about.”
[317] [2017] NSWSC 493.
The appellant also refers to an unreported decision of the Full Court of the Supreme Court of Western Australia in support of this submission.[318]
[318] Commercial Properties Pty Ltd v Italo Nominees Pty Ltd (Supreme Court of Western Australia (Full Court), Malcolm CJ, Pidgeon and Nicholson JJ, 16 December 1988, No 2131 of 1988, unreported).
The factual investigation report referred to eight witnesses who had provided statements. It referred to six additional potential witnesses from whom the investigators were “unable to secure statements”. Of these, apart from Mr Gaha, two were retired, two were “[n]o longer with NSW Police Force”, and one had “[l]eft the insured. Apparently moved to Queensland. No-one knew how to contact her.”[319]
[319] Reply, p 104.
The appellant submits a Jones v Dunkel inference is available in respect of the respondent’s failure to provide statement evidence from Mr Gaha. The factual investigation report arranged by the insurer stated that attempts had been made to contact and interview Mr Gaha, but he was “[o]n extended leave, not expected to return”.[320] The appellant submits this was not an adequate explanation. Mr Gaha could have provided evidence about “my emails and phone calls to him that clearly requested a response which were ignored”. The appellant submits the explanations relating to the other five such people were “not an explanation at all, let alone an adequate explanation”. He submits “various parties” could have provided evidence of “contemporaneous file notes of conversations”.[321]
[320] Reply, p 104.
[321] Appellant’s submissions on appeal, pp 58–61.
Respondent’s submissions
The respondent again refers to its defence of the matter, on the basis of its medical case from Dr George. It submits that Ground No 6 is misconceived. It submits that the appellant does not state what inference he seeks to have drawn from the failure to tender statements by Mr Gaha and others. It submits the appellant could have issued summonses for the attendance of the witnesses at the hearing, which he failed to do.
In his submissions in reply, the appellant submits the potential witnesses could have given evidence to rebut his case, that he perceived a hostile work environment. The appropriate inference is that the evidence of those witnesses would not have assisted the respondent’s case. The explanation in the factual investigation report, of why statements were not available from the named individuals, did not indicate what attempts were made to contact them. He submits the inference “would support a finding that I did experience a hostile work environment”.
Consideration
From the appellant’s point of view, this ground has the same difficulty as Ground No 5. The evidence from those potential witnesses, who did not provide statements, could only be relevant to the events that the appellant alleges occurred at work. Regardless of what view is taken of the events at work, the appellant cannot prove that the events caused psychological injury, given the Arbitrator’s non-acceptance of the opinions of Dr Smith and Ms Hidalgo. Again, it flows that any error on the Arbitrator’s part, regarding the drawing of inferences pursuant to Jones v Dunkel, could not have affected the result, and would not be appealable error. For this reason, Ground No 6 cannot succeed.
REASONS
It is noted, at [31] above, that the appellant makes a broadly stated assertion that the Arbitrator failed to give reasons for his findings of fact and law. This is not the subject of a separate ground of appeal, and no developed argument is made on this basis. For the sake of completeness, I record that the Arbitrator’s reasons comply with his duty to provide adequate reasons, consistent with his statutory duty in the Commission, and authority.[322]
[322] NSW Police Force v Newby [2009] NSWWCCPD 75, [147]–[151].
CONCLUSION
None of the appellant’s grounds of appeal have succeeded. The appeal fails.
DECISION
The identity of the respondent is amended to “State of New South Wales”.
The Arbitrator’s determination dated 3 April 2018 is confirmed.
Michael Snell
Deputy President
1 November 2018
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