Lindsay v IMB Ltd - [2019] NSWWCCPD 7

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Lindsay v IMB Ltd [2019] NSWWCCPD 7
APPELLANT:	Chimene Lindsay
RESPONDENT:	IMB Ltd
INSURER:	GIO Workers Compensation as agent for icare NSW
FILE NUMBER:	A1-2371/18
ARBITRATOR:	Ms C McDonald
DATE OF ARBITRATOR’S DECISION:	12 September 2018
DATE OF APPEAL DECISION:	1 March 2019
SUBJECT MATTER OF DECISION:	Psychological injury – application of State Transit Authority of New South Wales v Chemler [2007] NSWCA 249; 5 DDCR 286
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:	Khan Legal
Respondent:	Sparke Helmore Lawyers
ORDERS MADE ON APPEAL:	1. The Arbitrator’s Certificate of Determination dated 12 September 2018 is revoked. 2. The matter is remitted for re-determination by another Arbitrator.

INTRODUCTION AND BACKGROUND

Chimene Lindsay (the appellant) was employed by IMB Ltd (the respondent) from 3 August 2010. She was a loans assessor. Interpersonal conflicts developed, particularly from about December 2016 onwards. Various meetings were held to deal with these. The appellant eventually stopped work on 9 August 2017. She saw her general practitioner, Dr Zureigat, on that date, complaining of feeling “very anxious and … betrayed”, and giving a history of “bullying and harassment at workplace … going on for the past two months”. She was put off work and has not resumed.[1]
[1] Application to Admit Late Documents dated 26 July 2018 (AALD), p 44.
The respondent’s insurer paid compensation on a provisional basis from 28 August 2017 to 5 November 2017.[2] On 9 November 2017, the insurer issued a s 74 notice denying liability. This was on the basis that employment was not a ‘substantial contributing factor’ to injury.
[2] AALD 26.7.18, p 62.
On 9 May 2018 the appellant commenced proceedings, seeking weekly payments and the cost of medical and related treatment, in respect of psychological injury alleged to have occurred on 1 July 2017, relying on “various incidents occurring in the workplace”. An arbitration hearing was held on 13 August 2018, in which both parties were represented by counsel. There were no applications to cross-examine or to adduce oral evidence. The matter proceeded on the written material, counsel addressed, and the Arbitrator reserved her decision. A Certificate of Determination, accompanied by 17 pages of reasons, was issued on 12 September 2017, in which there was an award for the respondent.[3] This appeal is against that decision.
[3] Lindsay v IMB Limited [2018] NSWWCC 213 (Reasons).

ON THE PAPERS

Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by both parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

THRESHOLD MATTERS

The Application to Appeal Against Decision of Arbitrator was registered on 8 October 2018. An Amended Appeal was registered on 12 October 2018, correcting certain procedural deficiencies. There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

THE ARBITRATOR’S REASONS

The Arbitrator summarised the evidence of the appellant and her mother. The Arbitrator summarised the evidence of the respondent’s lay witnesses, clinical notes produced by Dr Zureigat, and the medical evidence relied on by the parties. She summarised the parties’ submissions. The Arbitrator said there was no dispute that the appellant suffered a psychological condition, and that she was unfit for work. The respondent submitted the injury involved a disease or the aggravation of a disease. If this were accepted, the appellant was required to prove that employment was the main contributing factor to the development or aggravation of the disease.[4]
[4] Reasons, [102].
The Arbitrator said “credit is placed squarely in issue by the statements relied on by IMB”. She said the appellant’s support from her medicolegal psychiatrist, Professor Robertson, was on the basis employment was a substantial contributing factor “if her version of events was accepted”.[5] The Arbitrator acknowledged that caution should be exercised in dealing with inconsistencies between a party’s evidence and medical histories.
[5] Reasons, [104].
The Arbitrator said there were “significant differences” between the appellant’s evidence about her prior history, and the previous symptoms recorded by Dr Zureigat, that “cast doubt on her veracity”.[6] The Arbitrator identified a discrepancy between the appellant’s family history to Professor Robertson about her mother (mild postnatal depressive illness) with the history Dr Burhan (a treating psychiatrist) recorded from the appellant, noted in his report dated 24 May 2012.[7] The Arbitrator said Dr Wotton recorded a history the appellant had no other stressors in her life and no family history of psychiatric disorder. Dr Wotton (the respondent’s qualified psychiatrist) said the appellant “played down her past psychological issues”. Ms Trista (a treating psychologist), and Dr Burhan (in his reports after August 2017) did not record a history of “any cause for anxiety other than work”. This was “at odds with Dr Zureigat’s notes”.[8]
[6] Reasons, [105].
[7] AALD 26.7.18, p 5.
[8] Reasons, [107]–[109].
The Arbitrator referred to a decision of Keating P in Brines v Westgate Logistics Pty Ltd,[9] in which his Honour said:
“Where a worker has given untruthful evidence the Arbitrator must carefully assess the rest of his evidence in order to determine its honesty and reliability. Some of the evidence may have been acceptable because other independent or objective evidence confirmed it. However, where a worker’s evidence was not independently supported it clearly must be assessed with great care to determine whether it could properly be accepted as proof of any matter that was in issue in the proceedings (see Malco Engineering Pty Ltd v Ferreira and others (1994) 10 NSWCCR 117 and Divall v Mifsud (2005) NSWCA 447).”[10]
[9] [2008] NSWWCCPD 43 (Brines).
[10] Brines, [78].
The Arbitrator described the above as “relevant to the assessment of Ms Lindsay’s evidence”.[11] The Arbitrator also referred to “inconsistencies between Dr Zureigat’s clinical notes and the reports which are so significant as to reduce the weight of the reports.” After identifying some inconsistencies, the Arbitrator said Dr Zureigat’s statement (dealing with the past history) that “mental health had never been a main complaint cannot be accepted”.[12]
[11] Reasons, [111].
[12] Reasons, [112]–[114].
The Arbitrator said that the appellant ceased work on 9 August 2018 as a result of an adjustment disorder. She said this “satisfied the temporal connection in the definition of injury in s 4 of the [Workers Compensation Act 1987 (the 1987 Act)]”.[13] The Arbitrator said the claim was disputed on the basis that employment was not a substantial contributing factor (or the main contributing factor if the injury was one pursuant to s 4(b) of the 1987 Act) to the injury. The Arbitrator said she was not satisfied the less stringent of these tests (substantial contributing factor) was satisfied. The reason was that she was not satisfied the events on which the appellant relied “occurred as she said they did”. [14]
[13] Reasons, [115].
[14] Reasons, [115]–[118].
The appellant worked in a personal loan “pod”. She stated that in March 2015 she met with Mr Elliott (department manager) and Ms Jordan (team leader), and they asked that she come to the personal loan team full-time, “to manage the Personal Loan queue”. This would involve “prioritising the tasks for the team and managing the workflow etc”. These were “usually the responsibilities of the Team Leader”. She would also have to manage Denise, a personal loans assessor. This was also “a team leader responsibility”. She would also be responsible for training and mentoring a new team member, Ms Beck. The appellant felt that she was “taking on a senior position within the team”.[15] The appellant stated that in late December 2016 Mr Martin (senior lending manager) advised her that she would be upgraded, to be authorised as a “Class A lending authority”. She said she saw this as recognition, and was “proud of this achievement”.[16]
[15] Appellant’s statement dated 27 September 2017, Application to Resolve a Dispute (ARD), p 143, [8]–[10].
[16] ARD, p 145, [16].
The appellant stated that, from when her lending authority was upgraded, the “good relationship” she thought she enjoyed with Mr Elliott and Ms Jordan changed. Ms Jordan did not congratulate her, became “dismissive” towards her, and was “less flexible”, for example about using “time in lieu”.[17] The appellant said that, at a meeting in early March 2017, Ms Jordan told her that she “would no longer be managing the queue/workflow”, and lenders would not contact her as a “first point of reference”. The appellant said that she “felt like [she] was being demoted for no reason”.[18]
[17] ARD, p 145, [18]–[19].
[18] ARD, p 45, [20].
The Arbitrator said that the appellant’s professed understanding of this event was different to that of the respondent’s lay witnesses. The Arbitrator said that “Mr Elliott, Ms Jordan, Ms Langford and Ms Carnell agree that management of the personal loan queue was not one of the tasks Ms Lindsay was asked to undertake but one which she took on”. The Arbitrator said that “Ms Jordan’s email shows that [the appellant] retained significant responsibility”.[19]
[19] Reasons, [121]–[122].
The Arbitrator said there was “nothing in the emails and statements to support the allegation that Ms Jordan’s attitude changed after Ms Lindsay received a class A lending authority for personal loans” in late 2016. The Arbitrator said that “the tenor of the statements is [that] Ms Lindsay became increasingly difficult to work with particularly from about May 2017 when Ms Moore commenced employment”. She said the other staff “do not support Ms Lindsay’s claim”, and that “Ms Lindsay’s conduct in the workplace had a detrimental effect on others. Ms Lindsay’s negative comments about Ms Langford in her statement and her emails are at odds with the evidence of other witnesses”.[20] The Arbitrator said that the appellant’s actions “let herself down in some areas”. She referred to inappropriate communications with supervisors, and her attempt to dominate the conversation in meetings with the respondent’s senior lending manager, Mr Martin.[21]
[20] Reasons, [123]–[125].
[21] Reasons, [126].
The Arbitrator quoted from passages of Attorney General’s Department v K,[22] on which the appellant relied, in which Roche DP reviewed the authorities dealing with proof of injury in cases of psychological injury.[23] The Arbitrator made the following findings and award:
“129. For the reasons set out above, I am unable to accept that the events on which Ms Lindsay relies occurred as she said – the events relied on by Ms Lindsay were not real events. There is no evidence that Ms Jordan or any other person manipulated information or made false accusations. There is evidence that steps were taken to manage a team in which morale and productivity had become low. I accept the evidence of the other witnesses as to the reason for those events.
130. A/Prof Robertson’s support of Ms Lindsay’s claim was contingent on acceptance of her version of events and he correctly noted that a determination of whom to accept was not a matter for an independent medical examiner. The conclusion I have reached is consistent with that made by Dr Wotton but is reached on an analysis of the evidence rather than the acceptance of his conclusion.
131. I make an award in favour of the respondent.”
[22] [2010] NSWWCCPD 76; 8 DDCR 120 (A-G v K).
[23] Reasons, [127]–[128].

GROUNDS OF APPEAL

The following grounds of appeal are raised:
(a) The Arbitrator erred in law in failing to properly go about the fact-finding process resulting in an ultimate error of fact in finding that none of the employment events alleged by the appellant to have contributed to her psychological condition were real events. (Ground No 1)
(b) The Arbitrator erred in law in failing to apply established legal principles applicable to psychological injury cases such as the appellant’s by failing to appreciate the difference between the actuality of events and the perception of events. (Ground No 2)
The respondent, in its Notice of Opposition, seeks to support the decision on the basis that the Arbitrator did not err in how she decided the matter. The respondent “also submits that the Arbitrator’s award for the Respondent can stand on the basis that employment was not a substantial or main contributing factor to the Appellant’s injury – a matter of causation”. The respondent notes that the Arbitrator did not find whether the injury was one pursuant to subcl (a) or (b) of s 4 of the 1987 Act. It submits that the test in s 9A of the 1987 Act (or alternatively ‘main contributing factor’ in s 4(b) of the 1987 Act) could not be satisfied on the evidence as a whole.

LEGISLATION

Section 4 of the 1987 Act relevantly provides:
“4      Definition of ‘injury’
(cf former s 6 (1))
In this Act:
injury:
(a)     means personal injury arising out of or in the course of employment,
(b)     includes a disease injury, which means:
(i) a disease that is contracted by a worker in the course of employment but only if the employment was the main contributing factor to contracting the disease, and
(ii) the aggravation, acceleration, exacerbation or deterioration in the course of employment of any disease, but only if the employment was the main contributing factor to the aggravation, acceleration, exacerbation or deterioration of the disease,”
Section 9A of the 1987 Act provides:
“9A    No compensation payable unless employment substantial contributing factor to injury
(1)    No compensation is payable under this Act in respect of an injury (other than a disease injury) unless the employment concerned was a substantial contributing factor to the injury.
Note. In the case of a disease injury, the worker’s employment must be the main contributing factor. See section 4.
(2)    The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e) the worker’s state of health before the injury and the existence of any hereditary risks,
(f) the worker’s lifestyle and his or her activities outside the workplace.
(3)     A worker’s employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker’s employment,
(b) the worker’s incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4)     This section does not apply in respect of an injury to which section 10, 11 or 12 applies.”

APPELLANT’S SUBMISSIONS

Dealing with Ground No 1, the appellant submits that there was no dispute that she suffered a psychological condition, nor that she had no work capacity. The issue was causation. The Arbitrator failed to make findings about what caused the psychological condition, an adjustment disorder. The Arbitrator did not find that the condition was caused by pre-existing conditions or personality disorder. A fair reading of the medical evidence was that the adjustment disorder resulted from employment. This was the opinion of Professor Robertson, providing one accepted the appellant’s version of events. Dr Wotton’s opinion was that the condition was caused by a confrontation by management at her workplace. There was no medical evidence that employment was not a cause, nor that the disorder resulted from any pre-existing condition such as obsessive compulsive disorder (OCD) or anxiety. There was medical evidence that the appellant’s anxiety was exacerbated by some dental issues in late 2016, but the evidence was that this was much better by March 2017.[24]
[24] Appellant’s submissions, [9(a)–(k)].
The appellant submits the Arbitrator made a finding that employment was not a substantial contributing factor to the appellant’s undoubted injury on two bases. She did not accept the appellant as a credible witness, and she did not accept the employment events alleged to be causal of the condition were real events. The appellant states the Arbitrator recorded the events stated by the appellant to have been significant. These were:
(a)    In 2012 the appellant was assessing home loans. In 2013 such a position was advertised and not offered to her.
(b)    In 2015 the appellant began managing the personal loan queue, a role that was taken from her in March 2017.
(c)    In late 2016 the appellant received authorisation for Class A loans. Her team leader did not congratulate her (this is uncontradicted).
(d)    In about May 2017 the appellant was assigned to train a new employee.
(e)    In June 2017 the appellant requested a pay review, a request that was denied.
(f)    Management confronted the appellant about her efficiency in completing her work tasks, and displaying inappropriate images on her computer screen.
(g)    The appellant was late in submitting her own work appraisal.
(h)    There were several meetings with management about the above matters, and the appellant’s attitude and behaviour.
The appellant submits there was no doubt all of these events happened. They were confirmed by evidence of other staff and an email trail.[25]
[25] Appellant’s submissions, [9(l)–(o)].
The appellant continues, in submissions that are described as relating to Ground No 2, but which continue logically from the submissions already made. She submits that what differed, between the appellant’s evidence and that of other staff members, was not the happening of the events, but the perception of the events. The appellant’s submissions list a variety of the events, and how the perceptions differed. For example, the appellant saw the work she was offered in home loans as a promotion, and she saw not being offered the full-time job in home loans as unfair. She perceived the withdrawal of her management of the home loan queue as a demotion. She regarded the granting of Class A authorisation as a promotion (that was not acknowledged by her team leader), rather than merely a grant of additional authority.[26]
[26] Appellant’s submissions, [9(p)–(q)].
Dr Wotton described the appellant as having no capacity for self-reflection and no insight that her personality may have contributed to her difficulties. The appellant submits this made her a classical “egg-shell skull” case.[27]
[27] Appellant’s submissions, [9(r)].

The appellant submits the findings on credibility were irrelevant, in assessing the appellant’s evidence, except as regards her perception of events. The actuality of events was corroborated by other evidence. The Arbitrator did not find that the appellant lied about her perception of events and the behaviour of other staff. The appellant submits the Arbitrator failed to appreciate the difference between the perception of events and the actuality of events. The Arbitrator clearly considered the events that occurred were not correctly perceived by the appellant, “the events seen as demotions or promotions were not so; the events seen as unreasonable or unjustifiable were not so”. The appellant submits “The Arbitrator’s finding that the appellant’s conduct had a detrimental effect on the other workers was irrelevant to any proper assessment of what effect the events which clearly happened had on her.”[28]
[28] Appellant’s submissions, (s)–(u).
The appellant submits the matter can be re-determined on appeal, or alternatively remitted for re-determination by another Arbitrator.

RESPONDENT’S SUBMISSIONS

The respondent sets out the various factual findings made by the Arbitrator, which led to her conclusion. These are largely set out above in the summary of the Arbitrator’s reasons for decision, and I shall not repeat them. The respondent refers to the limitations on the nature of appeal under s 352(5) of the 1998 Act, and the nature of appealable error based on Whiteley Muir & Zwanenberg Ltd v Kerr.[29] Reference is also made to Beale v Government Insurance Office (NSW)[30] and Chanaa v Zarour.[31]
[29] (1966) 39 ALJR 505 (Kerr), 506.
[30] (1997) 48 NSWLR 430, 443–4.
[31] [2011] NSWCA 199, [86].
The respondent submits that the appellant has not dealt with the Arbitrator’s finding that the relevant events did not occur in the way the appellant alleged. The way in which the events occurred is crucial to a finding of what the event actually was. The appellant’s evidence was not accepted, justifying the finding that the events did not occur. The Arbitrator was entitled to prefer the evidence of witnesses other than the appellant, no error is disclosed in this.[32]
[32] Respondent’s submissions, [15]–[18].
The respondent also submits that the award for the respondent can stand on the basis that employment was not a substantial contributing factor, or a main contributing factor, to the injury – “a matter of causation”. The respondent notes there was not a finding of whether the injury was a frank injury or a disease. It submits the relevant test of causation cannot be satisfied in either case. The respondent refers to Dayton v Coles Supermarkets Pty Ltd[33] and Awder Pty Limited v Kernick,[34] submitting that s 9A is a question of fact, a matter of impression and degree, it is not purely a medical question. However, medical evidence on the point is important. Dr Zureigat’s opinion ignores the complex psychological history, the Arbitrator was justified in not relying on his opinion. Ms Trista gave her opinion without being aware of the complex psychological history. Professor Robertson relied on the appellant’s version of events, which the Arbitrator found to be unreliable. None of this evidence satisfactorily proved that employment was a substantial (or a main) contributing factor.[35]
[33] [2001] NSWCA 153; 22 NSWCCR 46.
[34] [2006] NSWWCCPD 222.
[35] Respondent’s submissions, [19]–[41].
The appellant denied any prior major psychological issues or non-work related factors to Dr Wotton. He said that work was not a main contributing factor and diagnosed a personality disorder. This did not assist the appellant. Without sound and supportive medical evidence, and without reliable evidence from the appellant, the appellant could not prove “substantial/main contributing factor”, it was entirely open to the Arbitrator to find she was not satisfied as to causation.

SOME AUTHORITIES

In State Transit Authority of New South Wales v Chemler[36] Spigelman CJ referred to one of the employer’s arguments in that case:
“As the Respondent submitted, in this case there was no issue as to injury. The Appellant’s submissions are directed to the proposition that where a matter is imagined, and operates merely as a ‘perception’, it cannot be said that the injury arose ‘out of or in the course of employment’ (s4).”[37]
[36] [2007] NSWCA 249; 5 DDCR 286 (Chemler).
[37] Chemler, [36].
The Chief Justice also said:
“In this area of law, as in negligence, the talem qualem principle is applicable i.e. employers take their employees as they find them. With respect to psychological injury there is an ‘eggshell psyche’ principle which, like the equivalent ‘eggshell skull’ principle, is a rule of compensation not of liability.”[38]
[38] Chemler, [40].
In the same case Basten JA quoted the following passage from Federal Broom Company Pty Ltd v Semlitch:
“Can the event to which a disordered mind irrationally attributes physical suffering, that is real to the patient but delusional, be properly called a contributing factor? Ordinary concepts of cause and consequence are perhaps not applicable. Yet it seems to me that the incident which precipitated or stimulated, however irrationally, the worsening of her condition could be regarded as a factor contributing to it.”[39]
[39] [1964] HCA 34; 110 CLR 626 at 642 (per Windeyer J).
Basten JA said:
“In so far as his findings constituted a rejection of the need for an intention to harass, there was no error of law. Nor is it necessary to determine whether the Respondent’s response was a misperception as to the intention or attitudes of his fellow workers. In contrast to discrimination law, the proper focus in this context is the consequence of conduct on the claimant and not, even in a limited sense, the motivation, intention or other mental state of the co-worker or supervisor: cf Purvis v [New South Wales] (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92 at [166] (McHugh and Kirby JJ); and [234]-[236] (Gummow, Hayne and Heydon JJ). If conduct which actually occurred in the workplace was perceived as creating an offensive or hostile working environment, and a cognizable injury followed, it was open to the Commission to conclude that causation was established. Accordingly, no error in point of law was identified by this ground.”[40]
[40] Chemler, [69].
In A-G v K Roche AP reviewed a number of authorities, including Chemler, from which the Acting President drew the following principles:
“(a)    employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ principle (Spigelman CJ in Chemler at [40]);
(b)     a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chemler at [54]);
(c)     if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chemler at [69]);
(d)     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 (President Hall in Sheridan);
(e)     there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on an ‘objective measure of reasonableness’ (Von Doussa J in Wiegand at [31]), and
(f)      it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered.”[41]
And:
“The critical question is whether the event or events complained of occurred in the workplace. If they did occur in the workplace and the worker perceived them as creating an ‘offensive or hostile working environment’, and a psychological injury has resulted, it is open to find that causation is established. A worker’s reaction to the events will always be subjective and will depend upon his or her personality and circumstances. It is not necessary to establish that the worker’s response was ‘rational, reasonable and proportional’ ...”[42]
[41] A-G v K, [52].
[42] A-G v K, [54].

THE GROUNDS

There are two grounds of appeal, they are interconnected and it is convenient to deal with them together.
The Arbitrator dealt with ‘injury’ briefly, saying:
“Ms Lindsay ceased work as a result of an adjustment disorder on 9 August 2018. She has satisfied the temporal connection in the definition of injury in s 4 of the 1987 Act.”[43]
[43] Reasons, [115].
The appellant, in her statement dated 27 September 2017 to an investigator, detailed a course of events from about March 2013 to 9 August 2017, allegedly causative of her injury.
The s 74 notice was apparently based on the statements obtained by the investigator, including this statement of the appellant. The s 74 notice identified nine allegations, to which the insurer responded. The ARD pleaded “various incidents occurring in the workplace”, and attached the appellant’s statement, which described multiple causative events. The basis of the finding of ‘injury’ in the appellant’s favour is unclear. It must be regarded as a finding on ‘injury’, as the Arbitrator then moved to deal with ‘substantial contributing factor’. One only moves to consider whether s 9A is satisfied after injury has been found. The injury must be identified, so as to consider whether it satisfies the requirements of s 9A. Sections 4 and 9A of the 1987 Act require independent satisfaction.[44] The brief finding may simply reflect an understanding (arguably consistent with the s 74 notice) that injury within the meaning of s 4(a) was not disputed. The finding must have been pursuant to s 4(a), as s 9A does not apply to a ‘disease’ injury.
[44] Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited [2009] NSWCA 324; 7 DDCR 75 (Badawi), [91].
Following her discussion of ‘substantial contributing factor’, the Arbitrator referred to the passages of A-G v K quoted at [37] above. The Arbitrator made factual findings:
“129. For the reasons set out above, I am unable to accept that the events on which Ms Lindsay relies occurred as she said – the events relied on by Ms Lindsay were not real events. There is no evidence that Ms Jordan or any other person manipulated information or made false accusations. There is evidence that steps were taken to manage a team in which morale and productivity had become low. I accept the evidence of the other witnesses as to the reason for those events.
130. A/Prof Robertson’s support of Ms Lindsay’s claim was contingent on acceptance of her version of events and he correctly noted that a determination of whom to accept was not a matter for an independent medical examiner. The conclusion I have reached is consistent with that made by Dr Wotton but is reached on an analysis of the evidence rather than the acceptance of his conclusion.”
The Arbitrator’s fundamental finding was that the events at work, which the appellant relied upon as causing her injury, were not real events.
The appellant’s simple submission is that there is no doubt the events relied on were real, they are confirmed not only by the appellant, but by other evidence. The respondent submits the way in which the events occurred is crucial to finding what the events were. It submits the finding that the events did not occur was available, given the Arbitrator’s rejection of the appellant’s evidence.

Management of the personal loan queue

In her discussion dealing with ‘substantial contributing factor’, the Arbitrator identified specific instances where she said the appellant’s evidence differed from that of the respondent’s lay witnesses. The first was the appellant’s management of the personal loan queue. The Arbitrator said that “Mr Elliott, Ms Jordan, Ms Langford and Ms Carnell agree that management of the loan queue was not one of the tasks the appellant was asked to undertake but one which she took on”.[45] The appellant’s statement said that she worked in both home loans and personal loans up to March 2015. She said that in March 2015 her role changed following a meeting with Mr Elliott and Ms Jordan, in which they asked her to come to the personal loan team full-time, to manage the personal loan queue. She said she was told she would have to manage Ms Langford, and train and mentor a new assessor, Ms Beck. The appellant described this as a “positive move”, “extra responsibilities”, she felt she was “progressing”.[46] The statements of Mr Elliott and Ms Jordan are silent regarding the meeting in 2015, they do not deny its occurrence, they simply do not refer to it.
[45] Reasons, [121].
[46] ARD, p 143, [7]–[10].
The loan queue clearly existed. It is referred to in the statements of Mr Elliott, Ms Langford and Ms Carnell, in addition to the appellant. The statements of these witnesses also confirm that the appellant was the person who allocated work from the queue.
The appellant’s statement described a meeting with Ms Jordan in March 2017, where Ms Jordan said the appellant would “no longer be managing the queue/workflow”, and lenders would no longer be able to contact the appellant as “their first point of reference”.[47] This was consistent with an email from Ms Jordan to the team dated 10 March 2017, which set out a summary of discussions from “yesterday’s meeting”. It dealt with queue management, saying each assessor would be responsible for their “own personal queue”.[48] When the changes were implemented, the appellant said she “did not understand why”, she felt as if she was “being demoted for no reason”, she felt she had gone backwards in her career. She said she expressed these feelings to Ms Jordan. She said Ms Jordan’s explanations did not make sense to her, and she sought a meeting to discuss the changes. An email chain attached to the appellant’s statement includes emails between her and Ms Jordan, relating to attempts to arrange a meeting, from 20 March 2017 to 12 April 2017.[49] The topics specified in these emails do not specifically refer to the change in queue management.
[47] ARD, pp 145–146, [20].
[48] ARD, p 169.
[49] ARD, pp 171–173.
Mr Elliot’s statement said of the loan queue that “it was never a job position nor was it company policy. It was just something that the team in this pod came up with”. He said the appellant had “a belief that she was ‘in charge’ of the pod by virtue of controlling the queue”.[50] Ms Jordan’s statement did not touch on the meeting with the appellant in March 2017, nor do the statements of the other witnesses. Mr Martin’s statement reproduced a list of points of discussion (recorded in his notebook) raised by the appellant at a meeting involving him, the appellant and Ms Fellowes on 3 August 2017. The points included:
“• Change of process Q Managemet [sic] and scenarios.
· It was not explained properly and changing explanations by Michelle [Ms Jordan].”[51]
[50] Reply, p 54, [19]–[20].
[51] Reply, p 67, [29].
The Arbitrator said that although the appellant regarded the change as a demotion, “Ms Jordan’s email shows that she retained significant responsibility”. The email is not precisely identified. It appears to be a reference to an email from Ms Jordan dated 30 June 2017, which described itself as a “time line of discussions held with [the appellant] over the last few weeks”.[52] The only reference in it to the change in queue management practices was to a meeting on 23 June 2017 involving the appellant, Ms Jordan and Mr Elliott, where the following is described:
“CL [the appellant] is not happy with the change in process for queue management – CL prefers queue management to be under her control – MJ [Ms Jordan] explained again the reason for change – CL believes this is an inefficient change”.
[52] Reply, pp 83–84.
There is nothing in that email that deals specifically with what responsibilities the appellant retained following the March 2017 meeting.
There is much in this evidence that is uncontroversial, in which the appellant’s evidence is supported by statements of other witnesses and/or documents. Whether or not it was a job position, or company policy, the loan queue clearly existed up to the time of the meeting on 9 March 2017. The appellant took responsibility for managing the queue. The appellant regarded herself as having a management role in the pod, by virtue of controlling the queue. The appellant was unhappy with the change made in March 2017, and wished to retain control of queue management. She followed this up, seeking to arrange a further meeting with Ms Jordan. At meetings on 23 June 2017 (with Mr Elliott and Ms Jordan) and 3 August 2017 (with Mr Martin and Ms Fellowes) the appellant continued to complain about the change.
The appellant’s involvement in management of the queue, her belief that it gave her a management role, and the fact that she was unhappy when the practice was brought to an end, are amply demonstrated by evidence other than the appellant’s.

The class A lending authority

The second specific matter referred to, in the discussion regarding ‘substantial contributing factor’, was Ms Jordan’s response to the appellant receiving a “class A lending authority for personal loans”. The appellant’s statement said that in late December 2016, Mr Martin approached her and said he was comfortable with her having a class A lending authority. He said he would tell Ms Jordan, and “get the upgrade organised”. The appellant said that Mr Elliott and Ms Jordan had class A lending authorities, but “no other assessors have ever had a class A authority”. The appellant said she “saw this as recognition” and “was proud of this achievement”.
The appellant said that, following the discussion with Mr Martin, she discussed the class A lending authority with Ms Jordan. Ms Jordan said “What a coincidence Graham [Mr Martin] comes down to see you when we aren’t here”. The appellant said that Ms Jordan did not congratulate her, and appeared “bitter about the situation”. The appellant said that her good relationship with Mr Elliott and Ms Jordan changed from this point.[53]
[53] ARD, p 145, [16]–[19].
The reasons state “[t]here is nothing in the emails and statements to support the allegation that Ms Jordan’s attitude changed after Ms Lindsay received a class A lending authority for personal loans”.[54]
[54] Reasons, [123].
Mr Elliott confirmed the change in lending authority occurred in “about December 2016”. He described the authorisation as “not a promotion but simply an authority that permits the assessor to lend more money”.[55] Ms Jordan’s statement is silent regarding any conversation she had with the appellant when the appellant’s lending authority was increased, or her reaction to this event. Mr Martin’s statement is silent about the conversation where he informed the appellant of her class A authorisation. The authorisation is mentioned in the points of discussion in Mr Martin’s notebook regarding the meeting on 3 August 2017 (see [48] above), which includes:
“• Since Class A relationship with Michelle [Ms Jordan] deteriorated.”
[55] Reply, p 55, [22].
It is clear that the appellant’s lending authority increased, as she said, in December 2016. The notebook entry referred to in the preceding paragraph tended to confirm that it was the appellant’s belief that Ms Jordan’s attitude changed from when the appellant received the increased lending authority. Ms Jordan also recognised a change in the relationship, but dated it from a different time. Ms Jordan said that she considered the appellant “to be a friend and she was a good person to work with”.[56] She said:
“18. Up until about 2017 [the appellant’s] work performance was good. She was a good personal loan assessor and got on well with the other team members.
19. Things seemed to change when a new trainee assessor began with us. Stevee-Lee Moore commenced work with us on the 15 May 2017. I asked [the appellant] if she would train Stevee-Lee. She agreed to do this. She had trained other assessors in the past.
20. I noticed a change in [the appellant] almost immediately. Her attitude towards work changed and it was like she was a different person. Stevee-Lee seemed to have a negative effect on her.”[57]
[56] Reply, p 59, [13].
[57] Reply, p 60, [18]–[20].

It is clear that the appellant’s lending authority increased in December 2016. Her evidence that she was proud of this was plausible. Her evidence that Ms Jordan was not congratulatory at the time was uncontroverted, notwithstanding that there is statement evidence from Ms Jordan dealing with other matters. The appellant’s perception was that Ms Jordan’s behaviour towards her changed from that time. Ms Jordan regarded her relationship with the appellant as souring from about May 2017. These were real events. The perceptions of Ms Jordan and the appellant were different regarding when the relationship started to change.

Whether the appellant’s behaviour was of a bullying nature

This was the third specific matter raised. The reasons say “the tenor of the statements is [that] Ms Lindsay became increasingly difficult to work with from about May 2017 when Ms Moore commenced employment”. The reasons continue:
“The difficulties experienced by other staff are set out in their statements and they do not support Ms Lindsay’s claim. They indicate that the relationships within the pod may have been difficult for a longer period and that Ms Lindsay’s conduct in the workplace had a detrimental effect on others.”[58]
[58] Reasons, [123]–[124].
The above is apparently a reference to passages in the statements relied on by the respondent, that are critical of the appellant’s behaviour towards others. Mr Elliott described the appellant as letting herself down in some areas. She was “abrasive towards customers and staff at times and argumentative”. He had counselled the appellant “for her attitude”.[59] Ms Jordan, Ms Carnell and Ms Langford each described the appellant as acting like a bully.[60]
[59] Reply, p 54, [21].
[60] Reply, p 62, [40], p 71, [17], p 78, [40].
Whether the actions of any of the participants could be encompassed by the term ‘bullying’, and whether or not the appellant’s psychological condition resulted from ‘bullying’, was not the issue. The passage from the judgment of Basten JA from Chemler, quoted at [36] above, make it clear that “the proper focus in this context is the consequence of conduct on the claimant and not, even in a limited sense, the motivation, intention or other mental state of the co-worker or supervisor”.

References to Ms Langford

The fourth matter raised, in the discussion in the reasons dealing with ‘substantial contributing factor’, is the appellant’s “negative comments” about Ms Langford. These are described as “at odds with the evidence of other witnesses, particularly Ms Jordan”.[61] I note that, on the appellant’s evidence, the topic of Ms Langford was raised by Mr Elliott and Ms Jordan, at the meeting in March 2015. The appellant’s version of that meeting is not contradicted by evidence from Mr Elliott or Ms Jordan, both of whom provided statements that are in evidence. In the appellant’s version, the “negative comments” are attributed to Mr Elliott and/or Ms Jordan.[62]
[61] Reasons, [125].
[62] ARD, p 143, [9].
There is little in the balance of the appellant’s statement that could be described as “negative” regarding Ms Langford. The appellant said that when she was called into a meeting on 21 June 2017, with Ms Jordan and Ms Langford, because “Denise [Ms Langford] felt attacked by me”, she “couldn’t understand where this was coming from”. She said she “thought [Ms Langford] and I had a good working relationship”.[63] The appellant’s statement is consistent with a level of hostility permeating her relations with Ms Langford after the meeting on 21 June 2017. She said that she “started noticing that my colleagues, [Ms Langford] and [Ms Carnell], who I usually had a good relationship with changed”.[64] The appellant’s statement thereafter referred to the fact that the team “started to feel hostile”, and to Ms Langford “saying snarly remarks about the workload” and “whispering all day”.[65] This description is essentially of interpersonal friction, it is difficult to categorise it as “negative comments”.
[63] ARD, p 147, [26]
[64] ARD, p 148, [27].
[65] ARD, p 148–149, [28]–[29].
Ms Jordan’s statement referred to the appellant becoming angry with Ms Langford, on 15 June 2017, when Ms Langford offered to show Ms Moore (who the appellant was training) a “fraud check match” screen on a computer. This screen was unusual. Ms Jordan said that the appellant became angry and was rude and aggressive towards Ms Langford. Ms Jordan spoke to the appellant on 19 June 2017, she said the appellant “initially did not believe that she had done anything wrong”, but after discussion agreed to apologise to Ms Langford. Ms Jordan arranged a meeting that day and the appellant apologised. Ms Langford said that at the time of the meeting there “hadn’t been any real problems other than [the appellant] being offensive in general”.[66] Ms Langford described the appellant as a “very aggressive person and she has had a go at me many times over the years”. By contrast, Ms Jordan described Ms Langford as “very quiet and timid”.[67] Ms Jordan said it was from the time of the meeting on 19 June 2017 that her relationship with the appellant “spiralled downhill”.[68] Ms Jordan described Ms Langford’s work performance as “extremely good”.[69]
[66] Reply, p 71, [20].
[67] Reply, p 61, [27].
[68] Reply, pp 60–61, [21]–[26].
[69] Reply, p 62, [36].
In any event, it is difficult to see a basis on which, if the appellant expressed negative views about Ms Langford inconsistent with the views of Ms Jordan, this would be relevant to whether the appellant suffered psychological injury, as a result of the sequence of work events described in her statement. The Arbitrator set out the factual sequence in her reasons at [10]–[28]. The matters are succinctly summarised in the appellant’s submissions.[70] The appellant’s assessment of Ms Langford was in no way central to the allegations.
[70] Appellant’s submissions, [9(n)].

The appellant’s dealings with her superiors

The fifth matter raised in the discussion of ‘substantial contributing factor’ was emails attached to the appellant’s statement. These are described as showing a “lack of awareness about her interactions in the workplace and the appropriate way to respond to her supervisors”. The Arbitrator referred specifically to the appellant’s email to Mr Elliott dated 23 June 2017. When, in a meeting on 30 June 2017, the tone in the email was addressed, the appellant said that she “doesn’t believe that emails have tone”. In meetings with Mr Martin, the appellant sought to dominate the conversation. The Arbitrator described this behaviour as “consistent with [the appellant’s] presentation to A/Prof Robertson and Dr Wotton.”
There was an exchange of emails between the appellant and Mr Elliott on 23 June 2017.[71] There was an email from Mr Elliott to each member of the pod, that referred to the work items to be dealt with, and said “we need to be working faster through these”. The appellant responded, asking Mr Elliot what he was referring to. Mr Elliott responded to the appellant, saying that allowance was given for the time taken in training Ms Moore, but Mr Elliott would expect “more than 1 loan assessed/approved under your name”. The appellant responded in a longer email, that sought to argue her position.
[71] ARD, pp 174–177.
She referred to some loans being particularly time consuming, as they involved things with which Ms Moore was not familiar. She said that, ignoring the fact that training was involved, she thought the workload completed by Ms Moore and herself was “not an issue”. “Not sure what you are expecting exactly.” She referred to the matters completed by Ms Moore and her, as opposed to Ms Langford, over the previous two days, arguing she and Ms Moore had “done more than enough of the workload”. She referred to “snarly comments Denise has been making over the last couple of weeks”. She said that she did not “believe in pressuring a new trainee with time when they are learning”. She referred to the “excel spreadsheet PL tracker”, and suggested that Ms Langford may have been manipulating entries. The appellant referred to her “class A authority”, and said that she assisted Ms Langford on a daily basis on loans sent for acceptance. She said “almost every single one has multiple issues/rework … which causes a lot of wasted time & delays on loan progression”. She concluded:
“I am very disappointed with the way this has been handled. On receipt of your email Stevee said to me ‘I thought you said I didn’t need to rush or worry if Denise has more in tracker than me?’. If you have an issue with my performance or my training please make some time to see me in person in future.”
Some of the appellant’s responses, in emails and in meetings, may have been intemperate, but it is difficult to see what flows from that. Section 11A of the 1987 Act was not in issue. Whether there was an appropriate causal relationship, between real events and the injury, was not dependent on a value judgment about whether the appellant at all times behaved with propriety towards her superiors.

Conclusion

The matters discussed above were not the totality of the events relied on by the appellant. They were those matters which were discussed in the reasons, leading to the conclusion that the events relied on were not real events. I accept the submission made by the appellant, that the events relied on (summarised in both the reasons and the appellant’s submissions) were real events.
The Arbitrator found “there is no evidence that Ms Jordan or any other person manipulated information or made false accusations”. This phrase is taken from the appellant’s statement at [26]. It is at the commencement of a paragraph dealing with a meeting arranged by Ms Jordan, on 21 June 2017, for the appellant and Ms Langford to “discuss the issues”. Ms Jordan arranged this meeting following an incident where Ms Langford sought to show Ms Moore (who was in training) a “fraud check match” on a computer screen (see [64] above). The appellant indicated that she was confused about the need for the meeting.[72] Ms Langford also seemed to be unsure why the meeting was called.[73]
[72] ARD, p 147, [26].
[73] Reply, p 71, [20].
By this point, the appellant found Ms Jordan hostile. The appellant said that Ms Jordan was involving Mr Elliott in “all issues to do with me”, and the appellant said her relationship with Mr Elliott also turned hostile. She felt her previously good relationships with Ms Langford and Ms Carnell were similarly affected. The appellant stated “[t]he Personal Loan team started to feel very hostile.”[74]
[74] ARD, p 148, [27]–[28].
The case brought by the appellant relied on a series of events. The claim did not rely on proof that any person “manipulated information or made false accusations”. Such an allegation was not referred to in the s 74 notice, nor in how the matter was pleaded in the ARD. It is a line taken from the appellant’s statement, describing a deteriorating situation at a time when she considered the whole team felt hostile. That phrase does not encompass the way in which the appellant framed her case on ‘injury’ and ‘substantial contributing factor’. It is clear from other statements that interpersonal relations in the team were difficult around that time. The success of the appellant’s case did not depend on where fault lay, for the apparently increasing difficulties in personal relations in her team. The appellant did not regard herself as blameworthy, and thought that Ms Jordan was manipulating information. Some of the respondent’s lay witnesses considered the appellant bullied others in the team. These are matters of perception. The ultimate finding of fact at [129] of the reasons was effectively a rejection of the accuracy of the appellant’s perception of where fault lay. The approach taken was inconsistent with the decision in Chemler, in particular with the reasons of Basten JA at [69].
The Arbitrator made a credit finding adverse to the appellant, based on identified deficiencies in her medical histories dealing with prior complaints and family history. The conclusion I have reached above is based on the evidence overall, and is available if the view the Arbitrator formed of the appellant’s credit is accepted. To the extent to which the credit finding played a role in the Arbitrator’s reasoning, I accept the appellant’s submission[75] that the finding that the events were not real was such that I can give effect to my own conclusion, consistent with the principles in Fox v Percy.[76]
[75] Appellant’s submissions, [9(z)].
[76] [2003] HCA 22; 214 CLR 118; 197 ALR 201; 77 ALJR 989, [29] per Gleeson CJ, Gummow and Kirby JJ.

The respondent’s other argument

The respondent submits the award in its favour can stand in any event, on the basis that the evidence could not satisfy the tests of either ‘substantial contributing factor’ (if the injury was pursuant to s 4(a) of the 1987 Act) or main contributing factor (if the injury was pursuant to s 4(b)). The respondent submits there was no finding made regarding whether the injury was a frank injury or a ‘disease’. For reasons given above, I concluded that the Arbitrator must have made an ‘injury’ finding, and that it must have been pursuant to s 4(a), as that was needed to proceed to deal (as she did) with ‘substantial contributing factor’. I accept that this is not free from doubt. In her reasons at [118] the Arbitrator said:
“However, for the reasons which follow, I am not satisfied that employment was a substantial contributing factor to the injury suffered by Ms Lindsay because I am not satisfied that the events on which she relies occurred as she said they did. It is therefore unnecessary to consider if the evidence proved the higher standard of being the main contributing factor to the aggravation of a disease.”
In Badawi it was said:
“The starting point for the President’s determination was that the appellant had sustained injury in the course of her employment. That was a matter that had been conceded, but its relevance remained fundamental to the task that the President was required to undertake under s 9A. It remained fundamental because, as we have already explained, ‘employment’ for the purposes of s 4 and s 9 is the same employment that is under consideration in s 9A.”
If one interprets the brief finding at [115] of the reasons to be a finding of ‘injury’ pursuant to s 4(a) of the 1987 Act[77] (as I did), this does not identify the injury found, beyond the fact that the injury involved an adjustment disorder, and the appellant went off work from 9 August 2018. Fundamentally, the employment duties associated with the injury have not been found. In Badawi Allsop P, Beazley and McColl JJA said:
“Section 9A requires a consideration of ‘the employment concerned’ to ascertain whether it was a substantial contributing factor to the injury given the relevant circumstances in which the injury occurred, including the matters in s 9A(2).”[78] (emphasis in original)
[77] See [41] above.
[78] Badawi, [105].
As the respondent correctly stated in its submissions, whether s 9A is satisfied is not purely a medical question. In my view it is inappropriate to embark on a determination of whether s 9A is satisfied, on the current state of fact finding regarding ‘injury’.
It follows from the above that appealable error is established, and the appeal succeeds.

REMITTER

What was in issue?

The s 74 notice dated 9 November 2017[79] was poorly drafted, and failed to identify with particularity what the insurer sought to dispute. Under the heading “Our decision”, it nominated a single basis for the dispute:
“We do not accept that your employment, as you have asserted, was a substantial contributing factor to any psychological injury you are complaining of: Section 9A of the 1987 Act.”
[79] ARD, pp 198–202.
Under the heading “Reasons for our decision”, the insurer reiterated that s 9A was relied on. It then expanded on the reasons. It commenced by saying “You have asserted that your injury (which is disputed) and your absence from your employment with IMB from 1 August 2017 were caused by the following workplace events.” It will be observed that this passage is consistent with ‘injury’ being in issue, contrary to the stated ‘decision’. The notice then set out nine allegations of work events. In each instance, the notice set out a response to the allegation, based on the insurer’s factual investigation. It recited a short passage from the report of Dr Wotton, which said that “employment has not been the main contributing factor to Ms Lindsay contracting the disease”. The notice continued:
“We therefore draw the conclusion that the background you have provided is not a reliable account of the series of events leading up to your alleged injury and therefore any diagnosis reached on this basis cannot be accepted.
Based upon the information available we do not accept that your employment, as you have asserted, was a substantial contributing factor to any psychological injury and incapacity certified from 28 August 2017 Section 9A of the 1987 Act.
Section 4 of the 1987 Act provides that an ‘injury’ means a personal injury arising out of or in the course of employment. This definition also includes a ‘disease injury’ contracted, aggravated, accelerated, exacerbated or deteriorated in the course of employment, but only if the employment was the main contributing factor to this.”
The document then identified (but did not further refer to the contents of) the four witness statements on which it relied, together with the report of Dr Wotton.
It has been said “the obligation imposed by s 74(2)(a) of 1998 Act will not be discharged unless the reason/s the insurer disputes liability are clearly stated and the issues relevant to the decision particularised”.[80] This notice failed to comply with those obligations.
[80] Mateus v Zodune Pty Limited t/as Tempo Cleaning Services [2007] NSWWCCPD 227; 6 DDCR 488, [36], [45]. This decision was referred to with approval in Fairfield City Council v Arduca [2015] NSWCA 166, [30], [33], [35].
The respondent’s Reply said that it confirmed the dispute as per the s 74 notice, but also said that leave would be sought to add other issues. These included that the appellant “did not receive an injury at all or as alleged or employment was not the main contributing factor to the injury”.[81] This would be sufficient to dispute ‘injury’ pursuant to either limb of s 4. However, there is no indication that leave was ever sought or granted, to add these matters as issues pursuant to s 289A of the 1998 Act.
[81] Reply, p 3.
It is common for discussion to occur during the conciliation phase, which is not ordinarily recorded, before commencement of the arbitration hearing (which is recorded). Matters requiring leave may be dealt with, concessions made, issues expanded or narrowed, in circumstances where that will not be clear from the transcript. In such circumstances, it is important that such matters be clearly noted during the arbitration hearing, so that they are recorded. This protects the positions of the parties, and assists should a matter be appealed.
The appeal having succeeded, the preferable course is that it be remitted for re-determination. This will permit identification of the matters genuinely in issue.

DECISION

The Arbitrator’s Certificate of Determination dated 12 September 2018 is revoked.
The matter is remitted for re-determination by another Arbitrator.

Michael Snell

DEPUTY PRESIDENT

1 March 2019