Matthew Thomas Kennedy t/as Matts Bakery Cafe v Workers Compensation Nominal Insurer and Giddens - [2020] NSWWCCPD 23

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Matthew Thomas Kennedy t/as Matts Bakery Cafe v Workers Compensation Nominal Insurer and Giddens [2020] NSWWCCPD 23
APPELLANT:	Matthew Thomas Kennedy t/as Matts Bakery Café
FIRST RESPONDENT:	Workers Compensation Nominal Insurer
SECOND RESPONDENT:	Larissa Giddens
INSURER:	Uninsured
FILE NUMBER:	A1-5512/18
SENIOR ARBITRATOR:	Ms J Bamber
DATE OF ARBITRATOR’S DECISION:	8 May 2019 and 14 August 2019
DATE OF APPEAL DECISION:	22 April 2020
SUBJECT MATTER OF DECISION:	Whether discretion to admit or reject evidentiary statements miscarried; whether material evidence not given any or any proper consideration; whether matter determined on a basis not raised by the parties; whether appeal competent or out of time
PRESIDENTIAL MEMBER:	Acting Deputy President Larry King SC
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr P Macken, solicitor
Leigh Virtue & Associates
First Respondent:
Submitting appearance
Second Respondent:
Ms N Compton, counsel
RMB Lawyers
ORDERS MADE ON APPEAL:	1. The Senior Arbitrator’s Certificate of Determination of 8 May 2019 is confirmed. Consequently, the Senior Arbitrator’s Certificate of Determination of 14 August 2019, which was not challenged, is also confirmed.

INTRODUCTION

The appellant employer brings this appeal upon the basis that it is an appeal against the decision of a Senior Arbitrator, Ms Bamber, given on 14 August 2019. The Form 9, Application – Appeal Against Decision of Arbitrator (the Notice of Appeal) was filed within 28 days of that decision. However, as will appear below, the Senior Arbitrator handed down two decisions by way of Certificates of Determination accompanied by Statements of Reasons, one on 8 May 2019 and the other on 14 August 2019.[1]
[1] Kennedy v iCare workers insurance and Giddens [2019] NSWWCC 274.
There is an issue as to whether this appeal is out of time. That issue depends upon what can be called sub-issues as to whether the first decision was final, whether the appeal is exclusively a challenge to it, and whether, if the answers to those questions are in the affirmative, the appeal had to be brought within 28 days of it. No extension of time to appeal is sought.
The appeal, if competent, raises questions whether the Senior Arbitrator erred in rejecting the tender of evidentiary statements of two lay witnesses, erred in not giving any or any proper consideration to relevant evidence, particularly the clinical records of the second respondent’s general medical practitioner, and erred in determining the matter upon a basis not put by the parties.
The first ground of appeal relates to a ruling made during the first hearing on 2 April 2019. The second ground also relates to the first determination, being a criticism of the Senior Arbitrator’s reasoning to her first decision. The third ground, also, is a criticism of the Senior Arbitrator’s reasoning to her first decision.
Thus, it can be seen that the appeal is a challenge to the first decision. This makes the competency of the appeal a critical question in the disposition of the appeal.
It should be noted that in relation to the conduct of the appeal, the active participants have been the appellant and the second respondent. The first respondent has, in effect, lodged a “submitting appearance” indicating that it “is in the hands of the Workers Compensation Commission as to the determination of the appeal”.

BACKGROUND

On 1 March 2018, the second respondent was employed by the appellant, who operated a café under the name of Matts Bakery Café in Crookwell.
She alleged that she suffered an employment injury to her left knee on that day and claimed compensation from the appellant.
The appellant was uninsured and compensation benefits were paid to the second respondent by the first respondent.
In the ordinary course, as an uninsured employer, the appellant would have been liable to reimburse the first respondent, and the first respondent sought recovery of the payments it had made to and on behalf of the second respondent.
Section 145 of the Workers Compensation Act 1987 (the 1987 Act) enables an employer to contest a claim for recovery, and on 22 October 2018, the appellant filed in the Commission a Miscellaneous Application so doing.
As framed, that application asserted that the second respondent had suffered no injury and so was not entitled to compensation, with the logical consequence that the payments that were made by the first respondent ought not to have been made and if recoverable at all, were not recoverable from the appellant.
Following a number of telephone conferences, the application came before the Senior Arbitrator for hearing on 2 April 2019. In addition to pressing the issue it raised according to its terms, the appellant sought to challenge the question of the second respondent’s incapacity for work. This meant a challenge to the quantum of compensation paid.
Before the Senior Arbitrator both respondents, both being active in the proceedings at that stage, objected to the challenge to incapacity upon the basis that it was raised for the first time on the hearing day. The Senior Arbitrator declined to entertain any consideration of incapacity. However, she indicated that in the event that the challenge to the second respondent’s entitlement to compensation articulated in the Miscellaneous Application failed, that is, if she found that the second respondent had sustained injury as claimed, then she would allow the issue of incapacity to be raised, with all parties on notice and with an opportunity to prepare.
As the hearing on 2 April 2019 proceeded, three statements from lay witnesses were tendered for the appellant. They had not been served prior to the arbitration as required. They were served or produced on the hearing day itself.
The first of these was a statement of Ms Kimberly Laverty dated 29 March 2019. It was objected to by the second respondent. The Senior Arbitrator rejected it because of its late service and its lack of any real apparent probative value.
The second was a statement of Ms Shernoah Evans dated 30 March 2019. It was objected to by both respondents. The Senior Arbitrator rejected it, upon the basis of late service which denied the respondents the opportunity to meet it, and upon the basis that, as Ms Evans worked for the appellant, the appellant could have procured the statement earlier and served it before the hearing date. (It is noteworthy that the Miscellaneous Application had had a fairly long interlocutory history before 2 April 2019 and the appellant was not legally represented until the teleconference of 27 March 2019.) The Senior Arbitrator found that to admit the statement would be unfair to the respondents and that with proper diligence it could have been obtained earlier.
The argument concerning the tender of Ms Evans’ statement occupies pages 11–16 of the transcript of the hearing before the Senior Arbitrator on 2 April 2019. So far as I can see, no suggestion was raised by the appellant that the statement should be admitted and the proceedings adjourned to enable the respondents to make enquiries to meet it.
A third statement of Mr Steven Dillon dated 1 April 2019 was admitted.
In the Certificate of Determination and Statement of Reasons dated 8 May 2019, the Senior Arbitrator found that the second respondent had suffered the injury to her left knee that she claimed she had. Accordingly, the contemplated second question as to whether she had been overpaid fell for determination. It was the subject of written submissions filed and served in accordance with the Senior Arbitrator’s directions of 31 May 2019. She decided it as abovementioned by way of Certificate of Determination and accompanying reasons of 14 August 2019. The decision was that there had been what could be described as a modest overpayment, and the amount which the first respondent sought to recover was reduced from $35,558.59 to $32,340.83.
As mentioned above, the appeal was lodged within 28 days of that determination.

THRESHOLD MATTERS

There can be no dispute, and there is none, that the threshold requirements of s 352(3) of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act) have been met. It is necessary to deal herein with s 352(4).

ON THE PAPERS

The first written submissions of the appellant sought an oral hearing due to the absence of a written transcript, the nature of the proceedings (being an application of an uninsured employer in respect of a claim for reimbursement by the Nominal Insurer) having direct relevance to the consideration of procedural and discretionary matters the subject of the appeal and the appellant’s reliance on fresh evidence.
The appellant filed subsequent written submissions following receipt of the transcript, without indication of whether it maintained its position in respect of an oral hearing. On the assumption that it is maintained, I note the appellant’s first submissions do not indicate in what way a hearing would assist, what questions may arise or what could be expanded on at a hearing that is not adequately covered in written submissions. The appellant has lodged the submissions that originally accompanied the appeal, together with additional submissions after the transcript of the arbitration hearing became available. The second respondent accepts that this appeal may be dealt with on the papers. Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.

FRESH EVIDENCE

The Notice of Appeal seeks to adduce “fresh evidence” on the appeal, namely a report from Dr Wisam Ihsheish, orthopaedic surgeon, dated 1 June 2018 and a statement from Ms Penny Lynam dated 15 May 2019.
This application is opposed by the second respondent, and I shall deal with the question of the admissibility of this proposed evidence below.

ISSUES IN DISPUTE

As I hope is clear from the foregoing, the issues are:
(a)    whether the appeal is competent;
(b)    whether fresh evidence should be admitted upon the appeal, and
(c)    whether any of the grounds of appeal should be upheld.

GROUNDS OF APPEAL

The appellant relies on the following Grounds of Appeal:
(a)    “Error of discretion in the failure to admit Statements of Kimberly Laverty and [Shernoah] Evans (if necessary on terms requiring an adjournment).”
(b)    “Error of the Arbitrator in the assessment and consideration of the evidence including in particular the clinical records from the general practitioner on 5 March 2018 and following.”
(c)    “Error by the Arbitrator in determining the matter on a basis not put to or by the parties.”

THE COMPETENCY OF THE APPEAL

I think it is proper to deal with this question first. It is a discrete question and does not depend upon interpretation or analysis of the evidence going to injury and incapacity. Rather, it is a legal question entirely dependent upon the nature of the decision or decisions under challenge in the context of the evidence as it stood before the Senior Arbitrator.
The first set of submissions put on by the appellant understandably made no reference to this issue. They were dated 9 September 2019 and indicated that further submissions would be filed when the transcript had been obtained and considered. Those further submissions were dated 10 October 2019 and again made no reference to this issue. Further submissions were filed by the appellant on 23 October 2019 which merely clarified the 10 October 2019 submissions. It is understandable that the submissions for the second respondent were not filed until 7 November 2019. That was no doubt because the representatives of the second respondent knew from the appellant’s first submissions that further submissions were coming and chose to wait for them to deal with the submissions in their entirety. The second respondent’s submissions raised the question.
However, in accordance with the standard practice in the Commission of giving an appellant an opportunity of putting on submissions in reply to a respondent’s submissions by a specified date, the appellant was allowed until 5 December 2019 to reply and did not do so. This is curious. It is difficult to suppose that the appellant does not wish to challenge the second respondent’s argument, since if it is correct, in the absence of an extension of time in which to appeal which has not been sought, the appeal must fail. It is perhaps the more curious because one’s initial reaction is that upon any appeal the appellant carries the onus, which could be said to extend to showing that the appeal is competent.
In the circumstances, I propose to consider this question upon the basis that the submission that the appeal is out of time is contested by the appellant, but for undisclosed reasons. This seems to me to be an approach which admits of satisfactory consideration of the question from the point of view of both sides, since the competing positions are clear enough. The appellant must assert that the only relevant decision is the 14 August 2019 decision, and that the 8 May 2019 decision is picked up so to speak by the later decision, which depends upon it. He must also contend that both are final, but that time to appeal properly ran from the date of the second. The appellant submits in para [6] of his submissions dated 9 September 2019 that the decision is not interlocutory, without saying which decision. However, to say that a decision is not interlocutory in the present context can only rationally be understood to say that it is final, and the timing of the appeal can also, I think, only rationally mean that the appellant contends that 14 August 2019 is the operative date.
The second respondent’s position is made clear in her written submissions. Because the only challenge is to the 8 May 2019 decision and because it was final, an appeal should have been lodged within 28 days of it. Her submissions refer to s 352(4) of the 1998 Act which requires an appeal within 28 days “after the making of the decision appealed against”, and to Dennis v NSW Fire Brigades[2] and s 294(1) of the 1998 Act as making it clear that the decision is made when the Certificate of Determination is issued. She submits that the 8 May 2019 decision finally determined the issue of “liability” in the sense that it finally determined that employment injury had been sustained.
[2] [2007] NSWWCCPD 165.
It is well known that there is a considerable body of law about whether judicial decisions, depending upon their terms, are final or interlocutory in nature, and equally well known that the distinction is sometimes not easy to draw. The jurisprudence by way of decided cases extends to the Commission, and the two leading decisions of the Commission appear to be P & O Ports Limited v Hawkins[3] and Maricic v Medina Serviced Apartments Pty Limited.[4]
[3] [2007] NSWWCCPD 87 (Hawkins).
[4] [2007] NSWWCCPD 196 (Maricic).
In Hawkins the decision determined the date of injury. That decision was necessary so that the worker could be referred for assessment of whole person impairment. Roche DP cited the test articulated in Licul v Corney,[5] namely “does the judgment or order, as made, finally dispose of the rights of the parties?” and referred to Southern Cross Exploration NL v Fire and All Risks Insurance Company Limited (No. 2).[6] He then said at [37]:
“A difficulty arises in determining what is interlocutory in proceedings in the Commission because, unlike common law courts assessing claims for damages, the Commission does not assess compensation on a ‘once and for all basis’. For the reasons set out below, care should be taken before automatically adopting common law authorities on the meaning of the term ‘interlocutory’.”
[5] [1976] HCA 6; 180 CLR 213, 255, per Gibbs J (as his Honour then was).
[6] (1990) 21 NSWLR 200, 206–208, per Kirby P (as his Honour then was).
The Deputy President then held at [44] that the decision was interlocutory because it “… has not determined the parties’ rights or whether the Respondent Worker is entitled to compensation, as would be the case if a determination had been made on an issue such as injury, worker or substantial contributing factor.” (emphasis added)
It may be interpolated here that just as a finding of injury would be final in relation to a right to receive, and a liability to pay, some compensation in proceedings between a worker and an employer, such a finding by parity of approach would be final in determining in the present context a liability to repay and an entitlement to recover compensation.
Hawkins was applied by Snell ADP (as he then was) in Maricic. There the decision found that the employer was liable in respect of injury to the worker’s lumbar spine but not in respect of injury to the worker’s neck and shoulder, and referred the worker for an assessment of whole person impairment. The decision did not finally determine all the rights in the proceedings because it did not involve an award of compensation. However, it was a final and binding determination on what injuries were compensable and for that reason it was not an interlocutory decision: see paras [19] and [20].
To my mind there can be no question but that in Maricic, Hawkins was correctly understood and applied and that Hawkins itself is correct.
It follows that the decision of 8 May 2019 in this case was a final decision. It finally determined injury and thus liability. The submissions of the second respondent and of the appellant, as I interpret the appellant’s submissions, are both correct.
Upon the same analysis, the decision of 14 August 2019 was also final. It was final as to the amount of compensation to which the second respondent was properly entitled, and it thus finally determined the monetary right and obligation of the first respondent and the appellant.
However, this conclusion does not answer the question whether the appeal was properly brought within 28 days of the second decision or needed to be brought within 28 days of the first.
Hawkins is further relevant in that Roche DP observed that when a final Certificate of Determination was issued it would be open, in that case to the employer, but plainly enough to any affected party, to challenge all steps in the proceedings that resulted in the ultimate determination complained of. He referred to a number of general law authorities supporting the proposition that where there is a right of appeal, it extends to all interlocutory or other orders which are steps in the procedure leading up to final judgment and which affected its result.[7]
[7] Gerlach v Clifton Bricks Pty Limited [2002] HCA 22; 209 CLR 478, [4]–[8]; Macquarie Bank Limited v National Mutual Life Association of Australia Limited (1996) 40 NSWLR 543, 549; Ramton v Cassin (1995) 38 NSWLR 88, 92–3; Bunning v Cross [1978] HCA 22; 141 CLR 54 (Bunning), 82 and Crowley v Glissan [1905] HCA 13; 2 CLR 402.
These authorities seem to me to permit the appellant to agitate the correctness of the first decision in the present appeal. That is not to say that it would not have been permissible or desirable to appeal within time following the first decision rather than wait for the second, especially given that some compensation almost inevitably was going to be held to be recoverable against the appellant so long as the first decision stood.
There are, however, other decisions of the Commission in this area which should be referred to.
The cases which I think require consideration on the question of the competency of the appeal are Transley Solutions Pty Limited v Kagiorgis,[8] Hrvat v Thiess Pty Limited[9] and State of NSW v Abdul.[10]
[8] [2010] NSWWCCPD 45 (Transley).
[9] [2010] NSWWCCPD 69 (Hrvat).
[10] [2018] NSWWCCPD 41 (Abdul).

In the first of these, Transley, O’Grady DP, had before him two decisions. A Certificate of Determination of 4 September 2009 held that an injury suffered by the worker occurred in the workplace, and a Certificate of Determination of 24 December 2009 made decisions concerning the worker’s entitlement to lump sum compensation. The latter decision was the one under review by way of an application for leave to appeal, leave at that time, prior to the amendment of s 352 by the Workers Compensation Legislation Amendment Act 2010, being required in every case. However, the challenge was only to findings the subject of the 4 September 2009 Certificate. It was the employer’s application and the worker contended that it was out of time.
O’Grady DP held, consistently with Hawkins and Maricic, that the 4 September 2009 decision was not interlocutory.[11] He went on to hold that whether or not the employer could have appealed against that decision, the decision of 24 December 2009 was a final determination of the claim and an application within time following it would permit a review of all factual findings upon which it was made.[12] He relied upon Bunning, having noted the difference between proceedings in the Commission and other legal proceedings.
[11] Transley, [24]–[26].
[12] Transley, [26]–[29].
In Hrvat, Candy ADP had before him a Certificate of Determination on liability, issued on 1 September 2009. A further Certificate of Determination was issued on 7 December 2009 quantifying the worker’s claim. An appeal was lodged on 31 December 2009. It was concerned only with matters the subject of the 1 September 2009 decision. The Registrar rejected it as out of time, and it was re-filed with an extension of time being sought. At para [40], the Acting Deputy President said that the case was one, like Transley, in which “… it was contented that an appeal was out of time because it was not brought until a later COD brought the proceedings to an end although there were findings in an earlier COD against which an appeal lay”. He then went on at paras [41]–[43] to say that although the first decision was final, it was also “a preliminary step” towards the later determination.
Curiously, at para [42] the Acting Deputy President mentioned that the appeal was filed on 31 December 2009, that is, within 28 days of the second decision, and although he also mentioned that it was not “accepted for filing until 29 January 2010” he went on to say that it was clearly not lodged within time after the first decision of 1 September 2009. On that basis he held at [43] that an extension of time in which to appeal was required.
With all respect, this cannot be a correct application of Transley, if that case itself is a correct statement of the law. In Transley no extension of time was necessary because the appeal was within time following the second decision. In Hrvat, if the critical date was 31 December 2009, no extension of time was necessary. However, the two decisions are not necessarily inconsistent if the purported filing of the Notice of Appeal in Hrvat on 31 December 2009 was ineffective and was only achieved on 29 January 2010.[13]
[13] Hrvat, [42]
In Abdul a Certificate of Determination was issued on 12 January 2018. It articulated a decision about what injuries were caused in the workplace and the worker’s capacity for work. A further Certificate of Determination was issued on 21 March 2018 concerning indexation of weekly payments. An appeal was filed on 18 April 2018.
Wood DP held that the 12 January 2018 decision was not interlocutory, and that the appellant employer therefore needed an extension of time to appeal.[14] It was said that in Transley, leave to appeal out of time was required and was granted. As I read Transley that is not so. Leave to appeal was required in all cases at that time. Hrvat and Abdul appear to me to display a misreading of Transley.
[14] Abdul, [39].
What one can take from Transley, I think, is if there are two decisions and an appeal is brought within time from the second, even though it is exclusively concerned with the first, the appeal is within time and competent. No extension of time is required. This of course depends upon the decision being final and has regard to the authorities collected in para [43] above. On the other hand, if the burden of the ultimate decision or result in Hrvat and Abdul is acted upon, in such a situation a party wishing to appeal needs an extension of time.
In my judgment, in a case like the present, where the first instance proceedings are not brought to a close until the delivery of a necessary second decision, the better view is that so long as an appeal is lodged within time following that decision it can rely upon grounds referable only to an earlier decision. Transley, Hrvat and Abdul all correctly follow Hawkins and Maricic to the extent of recognising the type of earlier decision that is to be regarded as final. I would regard Hrvat and Abdul as being inconsistent with Transley in holding that leave to appeal is required. I would also regard them as inconsistent with Hawkins at para [46].
For these reasons I reject the second respondent’s contention that the appeal is out of time, and shall now turn to the questions presented by the appeal.

GROUND 1: THE REJECTION OF EVIDENCE BY THE ARBTRATOR AND THE ADMISSIBILITY OF FRESH EVIDENCE UPON APPEAL

The next logical step after determining that the appeal is within time and competent, as it seems to me, is to deal with the appellant’s contentions that the statements of Ms Laverty and Ms Evans ought to have been admitted into evidence by the Senior Arbitrator, and that the report of Dr Ihsheish and the statement of Ms Lynam should be admitted upon the appeal.
This is because, if the statements of Ms Laverty and Ms Evans should be added to the evidence, it would be necessary to consider whether they, when brought to account together with the other evidence, alter the result. Indeed, the question whether they were arguably capable of achieving that would be important in determining the first ground of appeal which challenges their rejection.
Then as to the report of Dr Ihsheish and the statement of Ms Lynam, if it is determined that they should be admitted upon the appeal, the same considerations apply.
But obviously enough, on the other hand, if none of this evidentiary material is admissible, the appeal falls to be determined upon Grounds 2 and 3 of the Grounds of Appeal.
I shall deal first with the Senior Arbitrator’s decision to reject the statements of Ms Laverty and Ms Evans. The challenge to this is made in Ground 1 of the Grounds of Appeal.
The appellant’s submissions in relation to the first Ground of Appeal are those dated 10 October 2019 following receipt of the transcript. They can be summarised as follows:
(a) Reliance was put on the oral submissions made to the Senior Arbitrator and recorded in the transcript in support of the tender of the statements.
(b) It was put that the Senior Arbitrator “… failed to have regard to any specific or identified prejudice arising by reason of the admission of the evidence and … failed to give consideration to the admission of the evidence on terms involving an adjournment of the proceedings to address any such prejudice were it to exist (and as indicated it is not identified).”
(c) It was put that proceedings under s 145 of the 1987 Act were “somewhat unique”, in effect, hamstringing the appellant procedurally and by way of preparation and making it difficult to obtain or marshal evidence, so that an adjournment should have been granted to enable any unidentified prejudice to the second respondent to be overcome.
In her written submissions, the second respondent extracted, verbatim, the Senior Arbitrator’s reasons for rejecting the statements and went on to put that the appellant had ample time before the hearing to gather the evidence.
I have no hesitation in accepting the correctness of the Senior Arbitrator’s exercise of discretion in rejecting the statements. She was correct to say that the probative value of the statement of Ms Laverty was difficult to discern if it existed at all. She was correct to say that the statement of Ms Evans could have been obtained in a timely fashion (and this consideration probably extended to the statement of Ms Laverty as well). She was also correct to say that the statement of Ms Evans would require consideration and investigation and that it would be prejudicial to the respondents for it to be admitted without time to do so. No error of the kind discussed Micallef v ICI Australia Operations Pty Ltd[15] was committed by the Senior Arbitrator.
[15] [2001] NSWCA 274, [45].
As to the appellant’s submission that an adjournment ought to have been considered and granted, as noted above in para [18], to my reading the transcript of 2 April 2019 discloses no application of that kind by the appellant and surely it was for him to raise it. But in any event, if it was not also implicit in the Senior Arbitrator’s reasoning that an adjournment would of itself prejudice the respondents, in my view, looking at this Ground of Appeal, that is a clear conclusion. In other words, if this Ground is approached without regard to the fact that an adjournment was not mentioned, the necessary consequence of an adjournment, putting the respondents to additional time, trouble and expense that would have been at least reduced if the statement were produced earlier, would have constituted a sound discretionary reason for rejecting the tender. In my opinion the Senior Arbitrator’s discretion did not miscarry.
In view of the reasons above, Ground One fails.
Turning now to the application to admit fresh evidence on this appeal, the admission of the report of Dr Ihsheish and the statement of Ms Lynam is supported in the first written submissions of the appellant dated 9 September 2019. In para [5], those submissions recognise the provisions of s 352(6) of the 1998 Act. Evidence is not to be received on appeal except by leave, and leave is not to be granted unless it is shown that the evidence was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or the failure to grant leave would cause substantial injustice in the case. For present purposes it must appear that the report and statement were not reasonably obtainable before the April 2019 hearing or that their rejection would cause substantial injustice to the appellant.
As to the statement of Ms Lynam, it is put that it only came to the employer subsequent to the 8 May 2019 decision and only as a result of the witness becoming aware, through social media, of the decision. As to the report of Dr Ihsheish, it is put that it was only provided to the appellant on 23 May 2019, after the decision, and is clearly significant so far as the substantive issues are concerned having regard to the history recorded by the doctor and secondly because it identifies a physiotherapist who was treating the second respondent.
I have read and considered both documents, and I will come to the second respondent’s submissions upon opposing their reception as fresh evidence in the following brief discussion of them.
As to Ms Lynam’s statement, she says that she used to work with the second respondent at the appellant’s Crookwell café, and that on several occasions in late 2017, she was told by the second respondent that she (the second respondent) intended to make a workers compensation claim against the appellant because she needed surgery on her knee. Ms Lynam moved to Canberra in February 2018. As noted above, the alleged injury happened on 1 March 2018. Ms Lynam moved to the Gold Coast on 8 May 2018. She goes on to say that in late May or early July 2018, the second respondent told her that she had made a successful workers compensation claim against the appellant. She says that she subsequently learned through social media that the second respondent had won her claim. On 15 May 2019, she telephoned the appellant and on the same day prepared her statement.
Whether or not the second respondent’s knee condition was the result of work injury was the sole issue in the 2 April 2019 hearing. A body of lay evidence contesting that proposition was led before the Senior Arbitrator. It is dealt with in paras [24]–[47] of the Senior Arbitrator’s reasons of 8 May 2019, following which passage of the reasons the Senior Arbitrator went on to consider the medical evidence. That evidence was also relevant to the question whether the second respondent sustained employment injury.
The Senior Arbitrator’s treatment of the lay evidence includes setting out some verbatim extracts from it accurately and otherwise appropriately analysing it. It is quite apparent that the appellant disputed any obligation to repay the first respondent upon the basis that there was no work injury but that the problem arose from a pre-existing injury. His own evidence noted by the Senior Arbitrator at para [25] of her reasons, was that the second respondent admitted as much to him. Evidence from other witnesses supportive of that proposition was advanced and discussed by the Senior Arbitrator. For the reasons given by the Senior Arbitrator, she was not persuaded by any of this evidence.
I think it is clear enough from the comments made by the appellant before the Senior Arbitrator that the appellant had access to a number of lay witnesses who were involved to a more or less relevant extent with the second respondent in the period leading up to the alleged date of injury. He must have known that Ms Lynam was another person in that position. It is difficult to imagine that he could not have contacted her with reasonable diligence. Accordingly, I am not satisfied that the first basis upon which evidence can be admitted upon this appeal as fresh evidence is made out in respect of Ms Lynam’s statement.
The statement should still be admitted if the second ground provided for in s 352(6) is engaged, namely the “substantial injustice” ground. I direct myself in accordance with CHEP Australia Ltd v Strickland.[16]
[16] [2013] NSWCA 351; 12 DDCR 501 (CHEP Australia).
I do not doubt that an obligation upon a small business proprietor in a small country town to pay over $30,000 and presumably interest is a significant matter. Nor do I doubt that a risk to the second respondent that the appellant succeeds in his Miscellaneous Application with the result that she may be looked at to repay the money on a restitutionary basis is also significant. These considerations, which are not among those discussed in CHEP Australia, if relevant to “substantial injustice” within the meaning of the section at all, are evenly balanced and may be put aside.
But to my mind the critical question it is whether, if added to the evidence already in front of and dealt with by the Senior Arbitrator, the evidence of Ms Lynam would be likely to make a critical difference. The critical difference must of course be reversal of the decision on injury arrived at by the Senior Arbitrator and forming the first Certificate of Determination.
Minds could differ on this question. As I have said, Ms Lynam’s evidence is to the same effect as other evidence adduced by the appellant. That other evidence included evidence of an admission to the appellant himself, and Ms Lynam’s statement asserts a further admission to like effect. It might be thought that it could not alter the effect of the Senior Arbitrator’s analysis, particularly when her consideration of the medical evidence is kept in mind. On the other hand, the evidence of Ms Lynam may be thought to be more striking than the other evidence, involving as it does a further assertion of a frank admission to her by the second respondent that a fraudulent claim would be advanced. Taking that feature of the statement at face value would tell in favour of a finding of “substantial injustice” if her evidence were excluded. But I think there is reason to be sceptical about Ms Lynam’s statement. Why would the second respondent make such a self-damning admission? Why is it to be supposed that the second respondent saw Ms Lynam as an intimate and confidante who would not betray this admission? If Ms Lynam were prepared to disclose it after the decision, why not earlier? Did she learn of it from the second respondent in 2018 or through social media later or both?
What is involved as I see this issue is a question of fact, namely whether the statement of Ms Lynam, and the considerations surrounding it that have briefly been adverted to, mean that it would carry the likelihood once in evidence of a different finding of fact that is, that the second respondent suffered no knee injury at work. I am unpersuaded of that. I do not think the content of the statement, given the room for reservations about it, makes a critical difference, particularly in light of the detailed consideration of the other lay evidence and medical evidence undertaken by the Senior Arbitrator.
I reject the tender of Ms Lynam’s statement as fresh or new evidence.
As to Dr Ihsheish’s report of 1 June 2018 to the treating general practitioner, it is immediately obvious that it was in existence well before the April 2019 hearing. It is also apparent from the Senior Arbitrator’s reasons that there was evidence from the doctor before the Senior Arbitrator. It was dealt with in paras [65]–[67] of her reasons. Paragraph [65] shows that the doctor’s report of 1 June 2018 was the subject of correspondence between the first respondent and him on 18 June 2018. Paragraph [67] shows that the doctor answered that correspondence and that his answer gave support to the second respondent’s claim of a knee injury at work.
The second respondent’s opposition to the tender of the report makes the points that it was reasonably available before the hearing and does not undermine the second respondent’s allegation of injury. The second respondent’s submissions go on to say, in my opinion accurately, the fact that a physiotherapist is mentioned in the report does not avail the appellant. If the doctor’s report was reasonably available before the hearing, then the identity of the physiotherapist must have been ascertainable as a result of that if not otherwise, and whatever the physiotherapist had to say by way of report, notes or evidentiary statement, was also reasonably procurable. Nothing from the physiotherapist has been advanced, and nothing appears from Dr Ihsheish’s report as to anything from the physiotherapist which would undermine the second respondent’s allegation of injury.
I am therefore not persuaded that either of the Grounds in s 352(6) of the 1998 Act is made out in respect of Dr Ihsheish’s report of 1 June 2018 so as to constitute it “fresh evidence” and I reject it.

GROUNDS 2 AND 3: THE REMAINING GROUNDS OF APPEAL

Both these grounds are dealt with in the second set of written submissions put on by the appellant after perusing the transcript.

Ground 2

The second ground of appeal, Ground (b), is supported by reference to the oral submissions made to the Senior Arbitrator, buttressed by reliance upon the “fresh evidence” tendered by the appellant and just dealt with.
The rejection of the evidence means that this ground falls to be evaluated in light of the oral submissions put to the Senior Arbitrator by the appellant on the evidence before her. On the face of things, the submission might be construed as meaning that those submissions should be looked at in isolation, and so looked at, ought to have been accepted. I would not accept that such a bold proposition is being advanced by the appellant. Rather I would read the submission as accepting that the arguments of all three parties against the backdrop of the evidence were to be considered.
In this connection it is noteworthy that the transcript of the hearing before the Senior Arbitrator on 2 April 2019 occupies 84 pages. The first 22 pages deal with the taking of appearances and what can fairly be described as procedural preliminaries, namely the application to have received in evidence the witnesses’ statements adverted to above. Then from the foot of page 37 to the foot of page 47, the transcript is occupied with another procedural matter, namely the raising by the appellant of the question of the proper amount of compensation payable to the second respondent if the issue of injury went against him. The balance of the transcript is concerned with the primary issue raised by the initial originating process, that is, whether the second respondent suffered an employment injury.

It is not necessary, in my view, to rehearse the competing submissions. It is sufficient to say that the appellant put to the Senior Arbitrator that the correct finding should be that there was no employment injury by reliance on lay evidence and medical records said to support that conclusion. A feature of the medical records relied upon was that the WorkCover certificates completed by the second respondent’s general practitioner did not show that the doctor had placed a tick or another mark in a box provided to say that the injury was consistent with the patient’s description of the cause. I think it is fair to say that primary reliance was placed in oral address upon the first of the certificates: see page 32 of the transcript. Each certificate provided three boxes for the answer to this enquiry, admitting of an opinion from the doctor in the affirmative, or in the negative, or that the doctor was uncertain. None of the boxes was ticked on the first or subsequent certificates.
This is a matter to which it will be necessary to return, since my understanding of the appellant’s argument in support of his third ground of appeal, Ground (c), is that the absence of any marking in any of the boxes on any of the certificates was dealt with by the Senior Arbitrator in a fashion which could not be said to have been relevantly covered in the oral addresses to her and which required her, having come to a view about it, to give notice to the parties and call for further submissions.
With all respect to the appellant’s submissions in relation to this ground, they amount to having a second go at an issue of fact upon a question which was the sole one for decision. The submission made by the second respondent at para [10.2] of her written submissions that this is a rehearing being engaged in by the appellant is correct.
That of course would not matter if the original submissions demonstrated error on the part of the Senior Arbitrator. However, in my opinion they do not. The Senior Arbitrator’s review of the evidence at pp 3–12 of her reasons, paras [11]–[69], is in my opinion comprehensive and accurate. Her reasons under the heading “Determination Regarding Injury” at pp 15–19, paras [87]–[119] have not been shown by the submissions put to her to involve error in my opinion. Certainly, I am not persuaded of any error and that is the test the appellant must satisfy.[17]
[17] Raulston v Toll Pty Limited [2011] NSWWCCPD 25; 10 DDCR 156.
I will now go on to deal with the appellant’s third Ground of Appeal, but because as I see it there is room for the view that the second and third grounds can be read together or be said to overlap, I will return briefly to this ground at the conclusion of these reasons.

Ground 3

This ground, Ground (c), is that the Senior Arbitrator determined the question of employment injury on a basis not put to her. It is dealt with in paras [5] and [6] of the appellant’s second set of submissions. What is put is that:
(a)    The analysis of the Senior Arbitrator in respect of the WorkCover certificate set out in paragraph [105] of her reasons was not the subject of any submission and was not brought to the attention of the parties by the Senior Arbitrator. Had it been raised by the respondents or the Senior Arbitrator, “the appellant could have dealt with it in a number of ways including by way of further submissions and also by way of calling evidence from the doctor. The failure to provide the opportunity constitutes a denial of procedural fairness”.
(b)    The second part of para [112] of the Senior Arbitrator’s reasons is said to involve the same error.
(c)    Paragraph [116] of her reasons is said to involve the same error.
To say that these submissions are terse in the extreme might be thought to be an understatement. In response to them, the second respondent’s submissions in para [11.1]–[11.7] of her written submissions extract paras [105], [112] and [116] of the Senior Arbitrator’s reasons in full, adding some short submissions which I think can be fairly reduced to an overarching proposition, that is, that the medical records were available to all the parties, who had the opportunity to consider them and reflect on their implications. The emptiness of the boxes on the WorkCover certificates was stressed by the appellant both in oral submissions in chief and further oral submissions in reply to the submissions of the respondents. It was a feature of the evidence that had been agitated and had to be dealt with. It was dealt with.
I take the gravamen of the appellant’s argument on this ground to depend at bottom upon the import to be attached to the fact that the boxes were left empty of markings or ticks. This aspect of the evidence was dealt with by the Senior Arbitrator and her conclusion articulated in para [105] of her reasons seems to me to be not just open but eminently reasonable. Far from being persuaded that the appellant has shown error on the Senior Arbitrator’s part in how she viewed the empty boxes, I think her view is correct.
Moreover, I accept the submission for the second respondent as I understand it, namely that the documents including the WorkCover certificates were available to the representatives of the parties for consideration and evaluation. I do not think it can be fairly be said that one explanation for the emptiness of the boxes which constituted an answer to the appellant’s submission was not obvious. It is that the doctor, no doubt busy, overlooked them. In any event, the Miscellaneous Application before the Senior Arbitrator was the appellant’s application, and although there was some debate before the Senior Arbitrator as to who carried the onus, the appellant must have carried it. It was for the appellant to clear this question up in his favour if possible, and the need to do so should have been apparent before the hearing.
I reject this ground of appeal, and if it were considered jointly with the second ground of appeal, in my opinion it would add nothing to that ground.

CONCLUSION

The application to admit fresh evidence has not been successful, nor has any of three grounds of appeal.

DECISION

The Senior Arbitrator’s Certificate of Determination of 8 May 2019 is confirmed. Consequently, the Senior Arbitrator’s Certificate of Determination of 14 August 2019, which was not challenged, is also confirmed.

Larry King SC

ACTING DEPUTY PRESIDENT

22 April 2020