Millennium Security Specialist Services Pty Ltd v Dimian
[2024] NSWPICPD 5
•2 February 2024
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Millennium Security Specialist Services Pty Ltd v Dimian [2024] NSWPICPD 5 |
APPELLANT: | Millennium Security Specialist Services Pty Ltd |
RESPONDENT: | Nabil Dimian |
INSURER: | QBE Workers Compensation (NSW) Limited |
FILE NUMBER: | A1-W4633/23 |
PRESIDENTIAL MEMBER: | President Judge Phillips |
DATE OF APPEAL DECISION: | 2 February 2024 |
ORDERS MADE ON APPEAL: | 1. The Certificate of Determination dated 24 October 2023 is revoked. 2. The matter is remitted to the Workers Compensation Division of the Commission for rehearing by another member. I direct that the Division Head allocate this matter to another member for rehearing at the earliest opportunity. |
CATCHWORDS: | WORKERS COMPENSATION – Failure of Transcript – Wyong Shire Council v Paterson [2005] NSWCA 74 considered – duty of lawyers, including solicitors, to take notes of proceedings – Dillon v Boland; Dillon v Cush [2012] NSWCA 364 applied |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr F Doak, counsel | |
| Hicksons Lawyers | |
| Respondent: | |
| Mr J Malouf, counsel | |
| Law Partners Personal Injury Lawyers | |
DECISION UNDER APPEAL | |
SENIOR MEMBER: | Ms K Haddock |
DATE OF MEMBER’S DECISION: | 24 October 2023 |
BACKGROUND
The respondent worker, Mr Dimian, was employed by the appellant employer, Millennium Security Specialist Services Pty Ltd, as a security guard. It was not in dispute that the respondent sustained a psychological injury, which was said to have occurred on 18 February 2023. On this date the appellant alleged that the respondent had tampered with a CCTV device and his employment was suspended.
The appellant rejected the respondent’s claim for compensation, relying on an assertion that its action with respect to discipline was reasonable for the purposes of s 11A of the Workers Compensation Act 1987 (1987 Act).
The respondent filed an Application to Resolve a Dispute in the Personal Injury Commission (the Commission) on 29 June 2023. The matter did not resolve and was ultimately heard by Senior Member Haddock on 19 September 2023. A decision in favour of the respondent was issued on 24 October 2023 and it is from that decision that the appellant appeals.
PRELIMINARY MATTER
After the appeal was filed, a transcript of the hearing on 19 September 2023 was ordered and produced. A perusal of that transcript reveals the following. At page 1, the transcript commences with Mr Doak, counsel for the appellant, stating that he had only one more subject to deal with, being the topic of incapacity. The Senior Member is then recorded as stating: “The matter is now being recorded again and the time is 11.33 am and the [appellant] wishes to make submissions on incapacity”.[1]
[1] Transcript of proceedings of 19 September 2023 (T), T 1.40–42.
Mr Doak then makes his submissions on this single issue from T2 to T4. No other submission made by Mr Doak has been transcribed. The matter commenced at 10am and it is apparent that none of the submissions that were made by Mr Doak between that time and 11:33am have been recorded. As a consequence, there is no transcript of the oral submissions during this 90-minute period. I would note from a review of the Senior Member’s decision that no oral evidence was called;[2] the matter proceeded simply on the basis of counsel making submissions based on the evidence before the Senior Member.
[2] Dimian v Millennium Security Specialist Services Pty Ltd [2023] NSWPIC 561 (reasons), [34].
I would also note that after summarising the evidence, the Senior Member stated the following:
“The submissions have been recorded. I will therefore summarise the main points.”[3]
[3] Reasons, [225].
The Senior Member then proceeded to summarise the “main points” made by both parties at reasons [226]–[266]. The summary of the appellant’s submissions appears at reasons [226]–[250]. The appellant’s submissions with respect to incapacity can be found at reasons [241], the balance of the submissions summarised by the Senior Member relate to s 11A of the 1987 Act and the issue of causation. None of these submissions, other than with respect to incapacity, as summarised appear in the transcript.
The transcript does recount everything said by the respondent’s counsel, as well as the appellant’s counsel’s brief reply submissions.
Despite enquiries being made, there is no recording and hence no transcript of the majority of the appellant’s first instance submissions.
As a result of this circumstance, the Commission issued a Direction to the parties on 29 November 2023 in these terms:
“1. On 20 November 2023, the appellant lodged an Application – Appeal Against Decision of Member (Appeal Application). The Commission accepted the Appeal Application, but prior to setting a timetable, the parties were informed by email on 20 November 2023 that due to a technical malfunction, there was no sound recording of part of the arbitration hearing available, and steps were being taken to obtain a copy of the transcript of proceedings before Senior Member Haddock on 19 September 2023. Attached to the email of 20 November 2023 was a copy of the sealed Appeal Application.
2. The transcript has now been received, a copy of which is enclosed for the parties. As foreshadowed, the transcript is incomplete. Accordingly, consideration must be given to whether a Presidential Member can fairly and properly carry out the duty of determining the Appeal Application under s 352 of the Workplace Injury Management and Workers Compensation Act 1998 based on the material currently available.
3. With this in mind, the timetable for appeal is set out in the following Directions, together with Directions seeking the parties’ views on the transcript.
Directions
1. …
2. By 6 December 2023, the appellant is to file any supplementary submissions it wishes to make in respect of the transcript as it relates to the grounds of appeal pleaded in the Appeal Application, and also address the following:
a. Whether the appellant’s ability to make submissions on appeal has been impacted by absence of part of the transcript.
b. In the Senior Member’s Statement of Reasons dated 24 October 2023 under the heading ‘Submissions’ at paragraphs [225] to [266], the Senior Member summarises the submissions made by the parties at arbitration. Under the heading “Summary” from paragraph [268], the Senior Member refers to submissions made by the parties, from time to time. To the best of the appellant’s recollection, is this an accurate summary of the parties’ submissions put to the member?
c. Having regard to the issues on appeal, the material that is available (including the Senior Member’s Reasons, primary evidence, and any submissions now made on appeal), does the appellant consider the Appeal Application is capable of being fairly and properly heard by a Presidential Member having regard to ss 3, 42 and 43 of the Personal Injury Commission Act 2020? If the answer to this question is no, please set out the reasons why this is so, with reference to the guiding principles, any relevant authority, and the appeal grounds.
3. By 8 January 2024, the respondent is to lodge with the Commission a Notice of Opposition (Form 9A) and supporting documentation in response to the appeal, enclosing submissions which also address the transcript and the appellant’s submissions in response to Order (2), as follows:
a. Whether the respondent’s ability to respond to the appeal has been impacted by absence of part of the transcript.
b. In the Senior Member’s Statement of Reasons dated 24 October 2023 under the heading ‘Submissions’ at paragraphs [225] to [266], the Senior Member summarises the submissions made by the parties. Under the heading “Summary” from paragraph [268], the Senior Member refers to submissions made by the parties, from time to time. To the best of the respondent’s recollection, is this an accurate summary of the parties’ submissions put to the member?
c. Having regard to the issues on appeal, the material that is available (including the Senior Member’s Reasons, primary evidence, and any submissions now made on appeal), does the respondent consider the Appeal Application is capable of being fairly and properly heard by a Presidential Member having regard to ss 3, 42 and 43 of the Personal Injury Commission Act 2020? If the answer to this question is no, please set out the reasons why this is so, with reference to the guiding principles, any relevant authority, and the appeal grounds.
…
7. During the course of the timetable set out above, the parties are to confer and consider whether or not it is necessary to produce an agreed document which recounts what transpired before the Senior Member to assist the hearing of this appeal, on the basis of any notes that both parties might possess with respect to the hearing before the Senior Member. Any agreed document to this effect is to be produced to the Commission by the expiry of the timetable, on 29 January 2024.”
A further Direction was issued on 24 January 2024 amending the dues dates for submissions.
The parties have now both supplied replies to the Direction. The appellant, in submissions dated 11 January 2024, submitted as follows:
“In response to the matters raised in Direction 3 the appellant says:
3(a): The appellant’s ability to make submissions in support of the appeal is adversely impacted by the absence of a record of the oral submissions made at the hearing. Counsel for the appellant does not have any independent recollection of the submissions made at the hearing and understandably did not have the opportunity to make sufficiently detailed notes of those submissions as he was making them. There is insufficient information on the file of the appellant’s solicitor about the substance of the submissions made on behalf of the appellant to overcome the absence of a record of the submissions in the Transcript. In those circumstances the appellant is left at a disadvantage in that it is unable to provide any further primary submissions based on the submissions made to the Member on its behalf at the oral hearing and also in reply to the respondent’s submissions on the appeal.
3(b): For the reasons provided, the appellant’s counsel has a limited recollection of the oral submissions made on behalf of the appellant at the hearing. As such the appellant is unable to confirm that the summary of the oral submissions made on its behalf set out by the Member is an accurate summary of the oral submissions.
3(c): The appellant does not consider that the appeal is capable of being fairly and properly heard in the absence of a recoded transcript of the oral submissions made on behalf of the appellant at the hearing. The proceedings are recorded to permit both parties to review the transcription of the oral hearing in the event that a party is aggrieved by a decision of the Commission and seeks to appeal it. That approach is consistent with the practice of courts and other tribunals in NSW and reflects the requirements of procedural fairness and natural justice. The recording of an oral hearing is also consistent with and mandated by the requirements of section 3 of the Personal Injury Commission Act 2021 [sic, 2020] … Relevantly, those requirements are:
Section 3(b) – ‘… to ensure the Commission—
(i) is accessible, professional and responsive to the needs of all of its users, and
(ii) is open and transparent about its processes …’
Section 3(d) ‘to ensure that the decisions of the Commission are timely, fair, consistent and of a high quality …’
Section 3(e): ‘to promote public confidence in the decision-making of the Commission and in the conduct of its members …’”
The appellant concludes its submission by stating that the appeal cannot take place in a way that satisfies ss 3 and 42 of the Personal Injury Commission Act 2020 (the 2020 Act) and therefore the matter must be remitted for rehearing before another member.
The respondent has supplied very brief answers to the Direction in its submissions in reply to the appeal dated 23 December 2023 at paragraph [11]. The respondent says that the appeal can be fairly heard. This position was expanded upon in the respondent’s submission of 1 February 2024, which makes much of the potential unfairness to the respondent in the event of the matter being reheard due to transcript problems.[4]
[4] Respondent’s submissions 1 February 2024, [14]–[15], [22].
Neither submission has attempted any assessment of the appeal grounds and the decision itself to assess whether it is possible for the appeal to be fairly heard in light of the obvious issues with the transcript.
Some legal principles dealing with the absence of transcript
I have previously dealt with this highly regrettable circumstance in Mosawi v Baron Forge (NSW) Pty Ltd.[5] The relevant principles appear at paragraphs [13] to [19] of that decision and I set them below:
[5] [2022] NSWPICPD 48.
“13. In Wyong Shire Council v Paterson[6] Giles JA said as follows:
[6] [2005] NSWCA 74 (Paterson).
‘Absence of transcript is not a passport to a new trial, or the equivalent of a fresh arbitration in the present case, even if, as appears to have been the case, all concerned thought that the transcript would be forthcoming if necessary.’[7]
[7] Paterson, [44].
14. Giles JA then said this:
‘I will assume, without deciding, that the Deputy President had a discretion, but if so it comes down to whether the Deputy President considered that she could properly carry out her task in the absence of the transcript. She considered that she could, and I do not think that it has been shown that her view was not open to her, or that it would work such an injustice on the employer that the only proper exercise of discretion could have been to send the matter back for a fresh arbitration. I am not persuaded that any error in the exercise of the assumed discretion has been shown.’[8]
[8] Paterson, [44].
15. Pursuant to s 3 of the 2020 Act, the Commission has the following objects:
‘3 Objects of Act
The objects of this Act are as follows—
…
(c) to enable the Commission to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible,
(d) to ensure that the decisions of the Commission are timely, fair, consistent and of a high quality,
(e) to promote public confidence in the decision-making of the Commission and in the conduct of its members,
…’
16. Additionally, s 42 of the 2020 Act sets out the guiding principle to be applied to practice and procedure. Section 42 relevantly provides as follows:
‘42 Guiding principle to be applied to practice and procedure
(1) The guiding principle for this Act and the Commission rules, in their application to proceedings in the Commission, is to facilitate the just, quick and cost effective resolution of the real issues in the proceedings.
…
(4) In addition, the practice and procedure of the Commission should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Commission is proportionate to the importance and complexity of the subject-matter of the proceedings.’
17. Further, s 43 provides:
‘43 Procedure before Commission generally
(1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2) The Commission is not bound by the rules of evidence but may inform itself on any matter in the manner the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.’
18. At the time that this hearing was conducted and at all times since, Procedural Direction PIC1 – Conduct of parties during proceedings (PD PIC 1) has been in force. Procedural Directions are made by myself as President under s 21 of the 2020 Act. At [36], PD PIC 1 says as follows:
‘Parties will be given an opportunity to present their case through providing oral or written submissions, and, where leave is granted, through examination of a witness. Hearings are recorded. A copy of the recording will be made available to the parties in accordance with the Commission’s policy Audio recordings and transcripts.’
19. This policy states, inter alia, that:
‘The Commission records all hearings. The Commission may provide a transcript of the audio recording of proceedings where:
·it has been prepared at the request of a Commission member;
·a Commission member has issued an ex tempore decision;
·an appeal or administrative review application has been lodged, and/or
·there exist other valid reasons.
Audio recordings and transcripts will be made available to parties at no cost.’”
To these principles I would also add the following. The appellant has stated that it does not have detailed notes of the submissions and further does not have any independent recollection of the submissions.[9] In Dillon v Boland; Dillon v Cush,[10] the Court of Appeal noted the obligation of lawyers, including solicitors, to take a proper note of proceedings.[11]
[9] Appellant’s submissions 11 January 2024, [3(a)].
[10] [2012] NSWCA 364 (Dillon), per Allsop P.
[11] Dillon, [5].
CONSIDERATION
I accept that pursuant to PD PIC 1 and the Commission’s audio recordings and transcripts policy, both parties to this appeal had a legitimate expectation that a sound recording and transcript of the hearing on 19 September 2023 would be available for the prosecution and defence of the appeal. Unfortunately such transcript as there is, is incomplete.
Notwithstanding this expectation, the remarks of Allsop P in Dillon have resonance. It is the duty of practitioners to take notes of proceedings. Whilst I accept that it is difficult for counsel to take notes of oral submissions while counsel is delivering them, Mr Doak of counsel did have the benefit of an instructing solicitor and a representative of the insurer as noted by the Senior Member.[12] Quite frankly, it is unacceptable that notes were not taken as this is a fundamental part of an instructing solicitor’s role. In this case there was no oral evidence called and the Senior Member has summarised what she describes as the “main points”[13] of each party’s oral argument. The appellant has submitted that it is unable to confirm the accuracy of the Senior Member’s summary.[14] The respondent’s representatives say that they have detailed notes and recollections, which accord with the Senior Member’s summary and which they are prepared to share them with the appellant.[15]
[12] Reasons, [27].
[13] Reasons, [225].
[14] Appellant’s submissions 11 January 2024, [3(b)].
[15] Respondent’s submissions 1 February 2024, [17]–[21].
The power for a Presidential member to intervene on appeal depends upon the identification and correction of error.[16] I am also cognisant of the Commission’s statutory mandates under ss 3, 42 and 43 of the 2020 Act, which require the quick, just and efficient resolution of the real issue in dispute.
[16] Section 353 of the 1998 Act, see also Raulston v Toll Pty Ltd [2011] NSWWCCPD 25, [19].
I am further cognisant of the cost and delay that would be associated with the upholding of an appeal due to an incomplete transcript and remitting the matter to be reheard in the Workers Compensation Division. Finally, I am mindful of the comments of Giles JA in Paterson, outlined above. Transcript problems do not automatically produce a rehearing.
The question to be considered is whether, given the state of the transcript, is it possible for the parties to fairly argue the appeal and for me to be able to identify error with respect to the real issues in the proceedings. In this case the parties disagree as to whether the appeal can be fairly heard given the state of the transcript. Whether the matter can be fairly heard involves the exercise of a discretion by me on this question.
This application was one under s 11A of the 1987 Act. Such cases are regularly heard in the Commission and usually involve on appeal, a challenge to the evaluative process of fact finding undertaken by the first instance member as well consideration of the findings made with respect to the reasonableness (or not) of an employer’s actions in one of the s 11A categories. This appeal is in this line of country.
In this case the appellant advances the following five appeal grounds:
· Ground One – The Senior Member erred in failing to apply the correct legal test when considering whether the actions of the appellant were reasonable.
· Ground Two – The Senior Member erred in taking into account an irrelevant consideration, namely by making a factual finding that it was not appropriate for Mr Faljoun to discuss the terms of the break and enter in the presence of the worker on 17 February 2023.
· Ground Three – The Senior Member erred in finding that the appellant’s actions were unreasonable because the appellant did not conduct its own investigation into the matter.
· Ground Four – The Senior Member erred in finding that there was a conflict in the evidence of Mr Swain and Mr Faljoun about the reason for the worker being stood down with pay pending the outcome of the investigation.
· Ground Five – The Senior Member misapplied the reasoning in Jeffery v Lintipal Pty Limited[17] in finding that the actions of the appellant in suspending the worker were not reasonable.
[17] [2008] NSWCA 138.
It is apparent from a reading of the Senior Member’s decision that the Senior Member did not accept what the appellant submitted about the reasonableness of its actions. However it is not apparent from a reading of the dispositive sections of the decision, starting at reasons [269], why the appellant’s submissions were rejected. The Senior Member has set out what I consider to be a detailed and studied summary of the appellant’s submissions over 24 paragraphs of the reasons.[18] But as the ultimate findings are based upon the Senior Member’s evaluation of the evidence, it is hard to discern how the appellant’s submissions were dealt with, although one can safely infer that they were rejected, given the factual findings. Without the transcript of the majority of the appellant’s first instance submissions, it is very hard for me to assess some of the assertions of error. For example, in Grounds One and Two the appellant takes issue with how the Senior Member dealt with the authority of Department of Education and Training v Sinclair.[19] The appellant clearly made submissions on Sinclair, and these appear (in summary form) at reasons [243]–[250]. But this summary is not of particular assistance in dealing with the submissions in the first two grounds now advanced – which at first blush appear to raise a different argument about Sinclair. If the argument was not raised before the Senior Member, axiomatically it is not an error for her not to deal with it,[20] but without a transcript of the submissions, I am simply not able to assess this. Conversely, if Sinclair has been misapplied as is now alleged in these grounds, the lack of transcript may not necessarily hinder that enquiry on appeal. Either the Senior Member applied Sinclair correctly on its terms or not.
[18] Reasons, [226]–[250].
[19] [2005] NSWCA 465 (Sinclair).
[20] Brambles Industries Limited v Bell [2010] NSWCA 162.
The respondent argues that delay, should the matter be remitted, is a factor that should be taken into account in deciding against remitting the matter.[21] I would remark that the injury in this matter is said to have occurred on 18 February 2023. The matter was then filed in the Commission in June, heard in September and a decision was delivered in October 2023. On any view, this matter has proceeded with commendable speed through the Commission’s dispute process.
[21] Respondent’s submissions 1 February 2024, [22].
These competing considerations do reveal the unsatisfactory circumstance attending upon this appeal, given the state of the transcript. Neither I nor the parties should be in a position where an appeal is decided or proceeds with such uncertainty about what occurred at first instance. Whilst the statutory mandate under the 2020 Act has various elements, namely quick and cost effective, a further element, “justly”, cannot be overlooked. Whilst it would be quick and cost effective to proceed, I cannot be sure in the circumstances and based on my assessment of the material, that producing a just outcome is not in danger.
Whilst the courts and tribunals have over the years made great advances with the use of technology, especially transcription, it cannot always be assumed that this technology will work perfectly all the time. Notwithstanding these advances, certain basic skills of the lawyer and the conduct of hearings remain unchanged. The requirement of an instructing solicitor to take notes of the proceedings continues to exist in contemporary legal practice just as it has done for many years.
The parties are at odds as to whether the appeal can be fairly heard. I have concerns about whether justice can be done given the circumstances of this matter. The exercise of the discretion whether to remit the matter or not is finely balanced.
It is therefore with great reluctance that I must remit the matter for re-hearing. For the reasons I have set out above, I am most concerned as to whether I could fairly hear this matter. The failure of the appellant’s legal representatives to take notes is entirely irrelevant to the exercise of this discretion. For the reasons I have stated above, note taking at a hearing is the fundamental duty of a solicitor and a failure to fulfil this duty does not lead in itself to the making of a remittal order. I do not consider that delay, as argued by the respondent, is a particularly compelling submission (for the reasons set out at [26] above). But such delay as would be occasioned by the remitter can be alleviated by the Direction that I will make in terms of the future conduct of this matter.
The particular circumstances relating to this matter are entirely regrettable and unfortunate but have led me to this conclusion.
Given the Senior Member’s decision, which is both detailed and reasoned, it would not be appropriate to remit this matter to the same member for rehearing. I make it clear that this is no criticism of the Senior Member, rather my concern is to ensure that this matter is heard swiftly and without the prospect of being delayed by any recusal applications which might delay the final hearing. I have noted the respondent’s justifiable concerns about delay[22] and this direction is aimed at dealing with that concern directly.
[22] Respondent’s submissions 1 February 2024, [22].
DECISION
The Certificate of Determination dated 24 October 2023 is revoked.
The matter is remitted to the Workers Compensation Division of the Commission for rehearing by another member. I direct that the Division Head allocate this matter to another member for rehearing at the earliest opportunity.
Judge Phillips
PRESIDENT
2 February 2024
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