Midcoast Council v Cheers - [2022] NSWPICPD 26

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Midcoast Council v Cheers [2022] NSWPICPD 26
APPELLANT:	Midcoast Council
RESPONDENT:	Paul Cheers
INSURER:	StateCover Mutual Limited
FILE NUMBER:	A1-W2240/21
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	5 July 2022
ORDERS MADE ON APPEAL:	1. The time for the respondent to file its Notice of Opposition to Appeal Against Decision of Member is extended to 18 January 2022. 2. The Member’s Certificate of Determination dated 9 November 2021 is revoked. 3. The matter is remitted to another non-presidential member for re-determination.
CATCHWORDS:	WORKERS COMPENSATION – submissions made after the time period for doing so was closed – Bale v Mills [2011] NSWCA 226 applied – Member’s duty to provide reasons – rule 78 of the Personal Injury Commission Rules 2021 – failure to consider submissions made – Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26 considered
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr D Baran, counsel
BBW Lawyers
Respondent:
Mr C Tanner, counsel
Carroll & O’Dea Lawyers
DECISION UNDER APPEAL
MEMBER:	Ms J Snell
DATE OF MEMBER’S DECISION:	9 November 2021

INTRODUCTION AND BACKGROUND

Mr Paul Cheers (the respondent) was employed by Midcoast Council (the appellant) for a period of fifteen years, and, for five of those years, he worked as a team leader in Roads and Construction. The respondent alleged that, following a co-worker’s promotion to roads supervisor (alternately referred to as “works supervisor”) in about March 2019, he began to be unfairly treated, including being moved from the Roads and Construction team to the Parks and Gardens team, where he performed work in a lesser role. The respondent attributed that treatment to the fact that he had discovered and reported allegedly corrupt and inappropriate business activities undertaken by the new roads supervisor.
The respondent sought psychological assistance from about June 2019. He consulted his general practitioner on 4 December 2020, who provided him with a mental health program. He ceased work with the appellant because of his psychological condition, lodging a claim for workers compensation on 3 December 2020.
The appellant denied liability for the claim on 15 February 2021. The basis of the denial was said to be that any psychological injury suffered by the respondent was wholly or predominantly caused by reasonable actions taken by the appellant during 2019 and 2020 with respect to discipline, performance appraisal and/or transfer. The appellant asserted that, in accordance with s 11A(1) of the Workers Compensation Act 1987 (the 1987 Act), the respondent was precluded from receiving compensation. The appellant also disputed that the respondent had no capacity for employment.
The respondent lodged proceedings in the Commission, seeking weekly payments and treatment expenses. The matter came before a non-presidential member, who heard and determined the matter. She concluded that she was not satisfied that the respondent’s psychological injury was either “wholly” or “predominantly” caused by actions taken by or proposed to be taken by or on behalf of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Midcoast Council v Cheers

Details

AGLC: Midcoast Council v Cheers [2022] NSWPICPD 26
Case: [2022] NSWPICPD 26
Decision Date: 5 July 2022

CaseChat Overview and Summary

Midcoast Council was the appellant and Cheers the respondent in a workers compensation case heard in the Personal Injury Commission. The dispute centred on the Council's handling of performance appraisal, discipline and transfer procedures and their alleged contribution to Cheers' psychological injury. The appeal was heard by the Commission, which had the authority to review the Member's decision under the relevant statutory provisions.

The appeal raised several key legal issues. Firstly, the appellant argued that the Member erred in determining that the Council's actions were not the predominant cause of Cheers' psychological injury. Secondly, the appellant contended that the Member failed to provide adequate reasons for her conclusions, thereby not complying with rule 78 of the Personal Injury Commission Rules 2021. The appellant argued that this failure meant the Commission could not properly review the Member's decision.

The Commission examined these issues and found that the Member's reasoning and compliance with rule 78 were satisfactory. The Commission noted that rule 78 requires the Member to provide a statement of reasons that sufficiently explains their findings and conclusions. The Commission found that the Member's reasons were adequate, as they included findings on material questions of fact, an understanding of the applicable law, and the reasoning process leading to the conclusions. The Commission also found that the Member had considered the evidence and had not overlooked any relevant material. The Commission upheld the Member's determination that Cheers' psychological injury was not predominantly caused by the Council's actions.

As a result of the Commission's decision, the appeal was dismissed, and the Member's determination stood. The Commission found no error in the Member's reasoning or compliance with the statutory requirements.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Rule 78 of the 2021 Rules provides: “78 Statement of reasons for decision (1) This rule applies only in relation to the following applicable proceedings— (a) Commission proceedings, (b) merit review proceedings. (2) A determination of the appropriate decision-maker in applicable proceedings to which this rule applies is to be accompanied by a brief statement of the appropriate decision-maker’s reasons for the determination that includes the following— (a) the appropriate decision-maker’s findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the appropriate decision-maker’s understanding of the applicable law, (c) the reasoning processes that led the appropriate decision-maker to the conclusions made. (3) Without limiting subrule (2), the reasons are to be stated sufficiently, in the opinion of the appropriate decision-maker, to make the parties to the proceedings aware of the appropriate decision-maker’s view of the case made by each party.” The first ground of appeal centres upon allegations of error on the part of the Member in respect of the factual contest between the parties relevant to the question of whether the appellant’s actions in relation to performance appraisal, discipline and transfer were reasonable. It is not clear why the appellant presented this as the first ground of appeal, when the first step to be undertaken in matters concerning s 11A of the 1987 Act, where psychological injury is admitted, is to determine the question of what was the whole, or predominant, cause of the injury. The second ground of appeal alleges that the Member erred by failing to provide adequate reasons for her conclusions and thus failing to comply with r 78 of the 2021 Rules. The fourth ground of appeal asserts error on the part of the Member in finding that the respondent’s psychological injury was not wholly or predominantly caused by the appellant’s actions that fell within the areas of discipline, transfer and/or performance appraisal. Those two assertions of error encompass the Member’s deliberations and her conclusion in respect of the whole or predominant cause of the injury. It is thus more appropriate, therefore, to firstly consider the appellant’s second and fourth grounds of appeal. The appellant submits that r 78 requires the Member to make findings on material questions of fact on the basis of the evidence or other material before her, her understanding of the applicable law and the reasoning process that led to her conclusion. The appellant says that the reasons are required to sufficiently expose the Member’s view in relation to each party’s case so that the party can understand why their case has been either accepted or rejected. The appellant contends that the Member’s reasons fail to meet that obligation, which constitutes an error of law. The appellant asserts that the Member has a duty to disclose the steps taken in reaching the conclusions expressed and should not leave the party to speculate why the Member came to those conclusions. The appellant submits that a failure to satisfy those requirements can lead an appellate decision-maker to infer that the Member either overlooked the evidence or failed to give it consideration.

Ratio Decidendi

Legal Principle Established

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