Miles v ACE Semi Trailer Sales Pty Ltd
[2007] NSWWCCPD 145
•25 June 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Miles v Ace Semi Trailer Sales Pty Limited [2007] NSWWCCPD 145
APPELLANT: Jason Miles
RESPONDENT: Ace Semi Trailer Sales Pty Limited
INSURER:Employers Mutual NSW Limited
FILE NUMBER: WCC11442-06
DATE OF ARBITRATOR’S DECISION: 20 November 2006
DATE OF APPEAL DECISION: 25 June 2007
SUBJECT MATTER OF DECISION: Absence of transcript of arbitral proceedings.
PRESIDENTIAL MEMBER: Acting Deputy President Kevin O’Grady
HEARING:On the papers
REPRESENTATION: Appellant: Beilby Poulden Costello
Respondent: Edwards Michael Moroney
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 20 November 2006 is revoked and the matter is remitted to another Arbitrator for determination afresh in accordance with these Reasons.
Costs of the original conciliation/arbitration hearing, and of the appeal, to follow the final costs order when the matter is determined afresh.
BACKGROUND TO THE APPEAL
On 14 December 2006 Jason Miles (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 20 November 2006.
The Respondent to the Appeal is Ace Semi Trailer Sales Pty Limited (‘the Respondent’).
The Appellant, who was born on 22 October 1968, is a married man and the father of three children. The Appellant and his wife are presently separated and the children of the marriage reside with the Appellant and are totally dependent upon him. The Appellant commenced employment with the Respondent in October 2001 as a Truck and Trailer Motor Body Builder.
On 10 July 2002, whilst in the course of his employment with the Respondent, the Appellant suffered a severe injury which resulted in complete T12 paraplegia. The Appellant has received intensive medical treatment, has undergone a rehabilitation program at the Spinal Unit at Prince Henry Hospital and is reliant upon a wheelchair to enable mobility.
The Appellant, as part of his rehabilitation program, commenced a return to work program with the Respondent in approximately 2003. The Appellant was trained to perform what is described as “paper work” and his working hours were increased gradually over a period of approximately 6 months at the end of which period the Appellant was performing 6 hours work per day, 5 days per week with the Respondent.
The Appellant performed these clerical duties until 10 March 2006. Until that date the Appellant received wages from the Respondent and it appears that during the 12 months immediately before 10 March 2006 the Appellant was working 35 hours per week. The Respondent’s Workers Compensation Insurer had supplemented his income by the voluntary payment of $265 per week pursuant to section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’). I note that weekly payments in the sum of $265 a week by the Insurer have continued since the Appellant’s cessation of work in March 2006.
The circumstances leading to the Appellant’s cessation of work concerned the Appellant’s absence from work on Friday 3 March 2006 which had occurred without notice to the Respondent. Upon the Appellant’s return to work on Monday, 6 March 2006 an exchange of words occurred between the Appellant and his superior, Mr Beeck. Shortly stated the Appellant, after explaining his absence from work on the previous Friday, found that he had no work to perform and has alleged that not only was his work removed from his desk but that there was thereafter little, if any, communication between the Appellant and his superiors and others working at the Respondent’s premises. On Friday, 10 March 2006 the Appellant left the Respondent’s office approximately 2 hours earlier than his usual finish time and has not returned. The Appellant consulted his General Practitioner, Dr Helou on 14 March 2006 following which that Practitioner certified the Appellant unfit for work for two days by reason of stress arising from his employment circumstances. Following a conversation between the Appellant and a fellow employee, Keiran Scott, which occurred on 15 March 2006 the Appellant’s employment with the Respondent ceased. The Appellant has not worked since that time.
The Appellant’s Solicitors subsequently claimed, as against the Respondent and its Insurer, payment of weekly benefits at the maximum statutory rate prescribed by the 1987 Act. The Insurer declined to make such payments and in the circumstances an Application to Resolve a Dispute with respect to such entitlement was, on 27 July 2006, filed on behalf of the Appellant in the Commission. That Application came before an Arbitrator for conciliation / arbitration on 1 November 2006 and a determination was made by the Arbitrator on 20 November 2006.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’ dated 20 November 2006 records the Arbitrator’s orders as follows:
“The determination of the Commission in this matter is as follows:
1)The application is dismissed.
2)No order as to costs.”
A Statement of Reasons for Decision (‘Reasons’) dated 19 November 2006 accompanied that Certificate of Determination.
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
(i)Whether the Arbitrator erred in admitting into evidence a Statement by John Beeck over the objection of the Appellant.
(ii)Whether the Arbitrator erred in his construction and application of section 40(2A) of the 1987 Act.
(iii)Whether the Arbitrator erred in “failing to recognise that the Respondent carried the onus of establishing the elements necessary to invoke section 40(2A) of the 1987 Act.
(iv)Whether the Arbitrator erred in his finding that there was no evidence with respect to Mr Beeck’s knowledge concerning the Appellant’s circumstances at work during the week commencing 6 March 2006.
(v)Whether the Arbitrator erred in failing to draw inferences from the state of the Respondent’s evidence.
(vi)Whether the Arbitrator failed to give weight or sufficient weight to the Appellant’s evidence with respect to matters of fact in dispute between the parties concerning contact and communication between the Appellant and servants of the Respondent.
(vii)Whether the Arbitrator erred with respect to findings of fact concerning the availability of work for performance by the Appellant at relevant times.
(viii)Whether the Arbitrator erred with respect to his conclusions of fact founded upon the contents of Dr Helou’s clinical notes.
(ix)Whether the Arbitrator erred in his conclusion that the Appellant had unreasonably rejected suitable employment within the meaning of section 40(2A) of the 1987 Act.
The summary of the issues as set forth above is taken from the Appellant’s document headed “Written Submissions”, in particular those matters stated at para 2.6 headed “Grounds of Appeal”.
The matters above summarised have been the subject of submissions in response by the Respondent in its “Notice of Opposition to Appeal Against Decision of Arbitrator”.
Following the filing of the Respondent’s Notice of Opposition noted above the Appellant, on 11 April 2007, filed with the Commission a “Reply to Notice of Opposition to Appeal Against Decision of Arbitrator” (‘Appellant’s Reply’). That document addresses what is described as “Supplementary Matters” and the Appellant sought to include an additional ground of appeal which is stated as follows:
“6.The Arbitrator erred in failing to record the proceedings and, in particular, the evidence given at the arbitration hearing on 1 November 2006 so as to effectively deny the Appellant his right of appeal pursuant to Section 352 of the Workplace Injury Management and Workers Compensation Act 1998.”
The Appellant’s Reply included detailed submissions in support of the “additional ground” and the Respondent has filed a document headed “Response to the Appellant’s Submissions” dated 30 April 2007. The contents of those documents give rise to the further following issues in dispute between the parties:
(a)Whether the Commission is “deprived of the ability to properly consider the appeal” having regard to the absence of a transcript of proceedings before the Arbitrator.
(b)Whether the Appellant has been “effectively deprived of his right of appeal” by reason of the absence of a transcript.
(c)Whether in the circumstances of there being no transcript of the proceedings the Appellant has been denied natural justice.
(d)Whether the Arbitrator was required to keep a proper record of proceedings and whether failure so to do is “sufficient to invalidate the proceedings”.
(e)Whether the Arbitrator’s Determination is “invalidated” by reason of non-compliance with the provisions of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), the Rules of the Commission and the terms of the Commission Guideline issued by the President with respect to the requirement that an Arbitrator maintain a record of proceedings.
(f)Whether the Arbitrator has erred with respect to findings of fact founded, in part, upon the credit and presentation of witnesses and whether such findings may be open to challenge on appeal.
ON THE PAPERS REVIEW
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
The Appellant has submitted that this appeal raises questions of law and that it would be appropriate to conduct a formal hearing at which supplementary oral submissions may be put. The Respondent in its Submissions has put that no “useful benefit” would follow from such a formal hearing.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and notwithstanding the submissions put on behalf of the Appellant with respect to the conduct of a formal hearing, 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.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The amount of compensation at issue on the appeal is such that the subject matter of the appeal meets the relevant threshold requirements for section 352(2) of the 1998 Act which must be met before a grant of leave to appeal may be made by the Commission.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
The requirements of section 352(2) and (4) having been satisfied and having regard to the subject matter of the appeal and the arguments raised I order that leave be granted to the Appellant to appeal to the Commission.
EVIDENCE AND SUBMISSIONS
The evidence before the Arbitrator was summarised by him at paragraphs 13 and 14 of his Reasons. As noted by the Arbitrator sworn evidence of the Appellant as well as that of Mr Keiran Scott was taken at the hearing. The balance of the evidence before the Arbitrator was documentary in form and, with the exception of the document described by the Arbitrator as being “treating note from Dr Helou”, those documents are presently before the Commission.
The absence of a transcript of the proceedings before the Arbitrator has, as above noted, been the subject of submissions by the parties. Following a thorough investigation as noted on the Commission’s file, it was established that the failure of the recording device utilised during the hearing was occasioned by technical fault. By reason of that technical failure the Commission does not have a transcript of the evidence given by the Appellant nor of that given by Mr Scott. The Commission does not have the benefit of a transcript of submissions put to the Arbitrator at the hearing on behalf of each party.
The absence of such a transcript of the proceedings is of particular significance with respect to the manner of conduct of this appeal and it is convenient at this point to deal with the implications of the absence of such transcript.
DISCUSSION
The Appellant, in support of the “additional ground” of appeal founded upon the absence of a transcript of the proceedings” asserts that by reason of such absence:
“The Presidential Member is … deprived of the ability to properly consider the appeal having regard to the evidence.”
The Appellant proceeds to argue that the absence of a record of the proceedings deprives the Appellant of his right of appeal pursuant to section 352 of the 1998 Act. It is further argued that the review permitted by that Act cannot be exercised without the availability of such proper record of the evidence. The Appellant seeks to emphasise that the conduct of such review cannot be exercised “particularly where the issues turn on contested evidence of sufficient significance for the Arbitrator to permit cross-examination of those witnesses …”.
The Appellant further submits that the absence of a record of proceedings and the consequences of that fact, namely deprivation of the Appellant’s right of appeal, constitutes a denial of natural justice and it is asserted that failure on the part of the Arbitrator to comply with the Commission’s Guideline issued by the President of the Commission “is sufficient to invalidate the proceedings before the Arbitrator”.
Reference is made, in the course of submissions on behalf of the Appellant, to the decision of the Supreme Court of NSW (Taylor CJ at CL) in Pinkstone v Goldrick [1979] 1 NSWLR 279 (‘Pinkstone’). That decision is relied upon by the Appellant as authority for the proposition that, in the present relevant legislative context, the Arbitrator had a duty to keep a proper record of the proceedings. Particular reliance is placed upon the following statement by his Honour:
“A judgment given without a proper record is a judgment that is given in error of law, so that an order of the nature of prohibition will lie.”
The Appellant makes reference in submissions to the decision of the Supreme Court of NSW in Sherring v Goldrick [1979] 1 NSWLR 285 (‘Sherring’). It is argued that the decision of Nagle CJ at CL in Sherring is distinguishable from the decision of Taylor CJ at CL in Pinkstone upon the relevant facts. It is argued that matters of principle enunciated in Pinkstone were confirmed by the Court in Sherring.
The Respondent, in its Response to the Appellant’s Supplementary Submissions and Amended Ground of Appeal, concedes the non existence of a record of the proceedings but argues that the absence of such record was the result of technical fault and was in no way related to any neglect on the part of the Arbitrator calling for review of his decision.
The Respondent cites the provisions of section 354 of the 1998 Act which section makes provision for the manner of conduct of proceedings before the Commission. It is put that the Appellant’s arguments in relation to the consequences in law of the failure to keep a record of the proceedings “overlook the broad discretion invested in the commission under the WIM Act”.
Reference is made by the Respondent to the decision of Goodman Fielder Limited v Alasmar [2004] NSWWCCPD 43 (‘Alasmar’) in support of the proposition:
“…that the failure to record the arbitration proceedings is not necessarily fatal to a fair review of the decision on appeal. The absence of a recording may not materially affect a fair review of the decision on appeal.” (Respondents submissions [4] )
There have, in the past, been a number of instances where appeals have been brought before a Presidential Member in circumstances where, for various reasons, there was an incomplete record of the proceedings from which the appeal was brought. In the matter of Aluminium Louvres and Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 (‘Zheng’) the Court of Appeal had occasion to consider the consequences of there being such an incomplete record. In that matter there was no compact disc or sound recording of the arbitration hearing and the evidence given before the Arbitrator. The difficulty confronting the Presidential Member in Zheng was overcome, by consent, by seeking a summary of relevant tracts of the evidence from a Solicitor for one of the parties. The Court of Appeal noted that the Solicitor’s narration of the relevant facts did not seem to have been disputed by the opposing party and in all the circumstances it was determined that there was no error on the part of the Presidential Member in deciding to accept the Solicitor’s narration where such was not disputed.
The decision in Zheng, in my view, firmly establishes that, having regard to both the legislative framework governing the conduct of proceedings before the Commission and the application of general principle, there exists a duty upon an Arbitrator to make a record of the evidence during the arbitration hearing. In circumstances where, for whatever reason, there is an absence of such a record, it was stated by Bryson JA (with whom Handley JA and Bell J agreed):
“This is a serious shortcoming, because it greatly impedes the right of appeal and the due exercise of powers of the Presidential member under s.352; and also impedes the conduct of a further appeal under s.353. According to circumstances, the absence of a sound recording could fairly readily lead a Presidential member to a decision to require a rehearing; although that result would not be automatic.”
In the present circumstances it is necessary to determine whether the absence of a complete record so impedes the conduct of this appeal that, rather than proceeding by way of review, there should be a requirement for a new hearing.
As noted above the Commission has before it not only most of the documentary evidence relied upon by the parties before the Arbitrator but also a detailed Statement of Reasons for Decision of the Arbitrator. It is arguable, in my view, that a number of the matters raised on behalf of the Appellant and addressed by the parties in their Submissions are capable of review by reference to that material which is available. Issues with respect to the question of onus of proof, the admissibility of Mr Beeck’s Statement and the questions raised as to the Arbitrator’s construction and application of the provisions of section 40(2A) of the 1987 Act may, arguably, be addressed on review notwithstanding the absence of the complete record. Those matters represent but part of the Appellant’s challenge to the Arbitrator’s ultimate determination and it becomes necessary to consider those other matters raised on behalf of the Appellant and addressed by the parties in Submissions to determine the proper course of this appeal.
The Appellant in his Submissions makes numerous references to the unrecorded evidence and submissions. These include:
(i)Reference to the evidence of Mr Scott given in cross-examination concerning material aspects of the Respondent’s system of allocating work as well as the nature of work available for performance by the Appellant at a particular time (Submission 2.6 3(g)).
(ii)Evidence of the Appellant given at the arbitration hearing concerning a reprimand of the Appellant by Mrs Beeck.
(iii)The responses of Mr Scott in cross-examination concerning his knowledge of the Appellant’s work system (Submissions 2.7 14).
(iv)The responses of Mr Scott, following cross-examination, with respect to the matters of fact raised by the application of the provision of section 40(2A) of the 1987 Act (submissions 2.7 18).
The Respondent in its Submissions, has made reference to the Appellant’s evidence in the course of cross-examination at the hearing relating to his “concerns of continued employment”.
Both the Appellant and Respondent have advanced arguments relating to the issue of credit of particular witnesses and in particular the relevant principles concerning review of such findings having regard to the advantage, as recognised but in some respects qualified by the Appellate Courts, of observations of a witness’s demeanour.
The Appellant in his Submissions (2.7 19) argues that the Arbitrator failed to have regard to the Appellant’s state of knowledge and state of mind when considering the proper application of the provisions of section 40(2A) of the 1987 Act. Reliance is placed upon the decision of the NSW Supreme Court, Court of Appeal in Freightcorp v Duncan [2000] NSWCA 309 (‘Freightcorp’).
It is my view that, in the absence of a complete record of proceedings, a just determination of the dispute between the parties, in particular with respect to the matters summarised in paragraphs 38 to 41 above, cannot be attained. I have reached this conclusion in part having regard to the correctness, in my view, of the Appellant’s assertion that, as stated by Davies AJA in Freightcorp (with whom Handley JA and Beazley JA agreed) when considering the requirements of proof raised by the provisions of section 40(2A) of the 1987 Act:
“… an assessment of the reasonableness of a worker’s refusal depends upon the worker’s knowledge at the relevant time.”
In the present case the Arbitrator considered the evidence before him with some emphasis upon the concept of “constructive dismissal” in the context of the Appellant’s employment contract. Following that discussion the Arbitrator concluded (at paragraph 35 of Reasons) that the Appellant was “author of his own misfortune”. Findings were made by the Arbitrator that the Appellant had made assumptions about his employer’s (the Respondent’s) intentions which were not, in the view of the Arbitrator, having regard to the evidence before him, well founded. It is in my view inappropriate to examine such findings which relate to a subjective state of mind without the advantage of a full transcript of the evidence.
The difficulties that I have attempted to summarise above are compounded by the fact that, in the absence of a transcription of submissions made by the parties before the Arbitrator, there is not sufficient material to be certain as to the approach adopted by each party to the issues raised on the relevant facts. This is of particular importance in the present matter having regard to the Respondent’s assertion that the concept of “constructive dismissal” was a concept introduced and relied upon by the Appellant in the course of address (page 3 of Respondent’s Submissions).
CONCLUSION
Having regard to the matters outlined above I conclude that the absence of a complete record of the proceedings before the Arbitrator so impedes the conduct of this appeal that it is appropriate that I revoke the orders of the Arbitrator and remit the matter for determination by another Arbitrator.
The error in this mater is constructive in nature, but is such that the Arbitrator’s decision must be revoked.
DECISION
The decision of the Arbitrator dated 20 November 2006 is revoked and the matter is remitted to another Arbitrator for determination afresh in accordance with these Reasons.
COSTS
The need for a rehearing has been occasioned by reason of a technical fault encountered during the course of the arbitration hearing and all concerned remain blameless. I have had regard to the decision of Snell ADP in K-Mart Australia Limited v Falzon [2006] NSWWCCPD 283 (‘K-Mart’) where the Commission noted the broad discretion as to costs which is granted by the provisions of section 341 of the 1998 Act. As was ordered in the matter of K-Mart I here consider it appropriate that costs of both the original conciliation/arbitration hearing and this appeal should follow the final costs order following remission to and hearing by another Arbitrator.
Kevin O’Grady
Acting Deputy President 25 June 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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