Millennium Security Specialist Services Pty Ltd v Dimian - [2024] NSWPICPD 5

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…

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.

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Details

Case: [2024] NSWPICPD 5
Decision Date: 2 February 2024

CaseChat Overview and Summary

In the case of Millennium Security Specialist Services Pty Ltd v Dimian, the dispute centred around a claim for workers' compensation. The respondent, Dimian, sought compensation from the appellant, Millennium Security Specialist Services Pty Ltd, after sustaining an injury in the course of his employment. The case was heard in the New South Wales Supreme Court. The primary issue before the court was whether the failure to provide a transcript of the proceedings from a previous hearing precluded the respondent from succeeding in his claim.

The court was required to determine whether the absence of a transcript due to the solicitor's failure to record the proceedings constituted a breach of the respondent's right to procedural fairness. This was particularly pertinent given the importance of accurate records in workers' compensation claims. The court also needed to assess whether the failure to record the proceedings could be remedied and if it impacted the respondent's ability to appeal the decision.

The court found that the failure to provide a transcript was a serious breach of the duty owed to the respondent. It referenced Wyong Shire Council v Paterson, where the importance of accurate records in legal proceedings was emphasised. The court also considered Dillon v Boland; Dillon v Cush, which highlighted the necessity for legal representatives to take proper notes. Given these precedents, the court concluded that the failure to provide a transcript could not be remedied and significantly impaired the respondent's ability to effectively pursue an appeal. Consequently, the court ruled in favour of the respondent, granting him the opportunity to present his case anew with a properly recorded transcript.

Orders