Miller v NSW Police Service

[2007] NSWWCCPD 78

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Miller v NSW Police Service [2007] NSWWCCPD 78

APPELLANT:  Luke Justice Miller

RESPONDENT:  NSW Police Service

INSURER:Treasury Managed Fund, Allianz Australia Insurance Limited

FILE NUMBER:  WCC5152-06

DATE OF ARBITRATOR’S DECISION:          11 July 2006

DATE OF APPEAL DECISION:  8 March 2007

SUBJECT MATTER OF DECISION:                Procedural fairness; party’s entitlement to new hearing.

PRESIDENTIAL MEMBER:  Acting Deputy President Kevin O’Grady

HEARING:On the papers

REPRESENTATION:  Appellant:      Whitelaw McDonald

Respondent:   Sparke Helmore Lawyers

ORDERS MADE ON APPEAL:  The decision of the Arbitrator, dated 11 July 2006, is revoked and the following order and direction is made in its place:

“The matter is to be remitted to another Arbitrator for determination in accordance with this decision and the following direction.

The Arbitrator is directed to adjudicate any application made by either party to adduce further evidence and to seek from each of the parties and to consider any supplementary submissions either written or oral the parties may elect to put.  Both the question of further evidence and submissions to be dealt with by the Arbitrator in accordance with a timetable determined by him or her before proceeding to determine the Application.

No order as to costs.”

No order as to costs of this Appeal.

BACKGROUND TO THE APPEAL

1. On 7 August 2006 Luke Justice Miller (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 11 July 2006.

1. The Respondent to the Appeal is NSW Police Service (‘the Respondent’).

1. The Appellant, who was born on 7 November 1977, commenced service as a Police Officer with the Respondent in September 2000 following his successful completion of training at the NSW Police Academy Goulburn, NSW.  The Appellant was initially engaged in general duties at Richmond and thereafter in Ballina and Lismore.  In September 2004 the Appellant was transferred to the Highway Patrol at Ballina.

1. Whilst on duty in October 2003 the Appellant attended the Cubana Motel, Ballina in the company of other Police Officers in response to reports that there was a male armed with a pistol who wanted to see the Police.  The Appellant and two fellow Officers set up a perimeter a short distance from the entrance to the Motel and whilst in this position the Appellant was confronted by a man armed with a pistol.  The Appellant drew his service pistol and aimed the weapon at the armed person.  The Appellant also shone a torch which he was holding at the man.  The Appellant identified himself as a Police Officer and demanded that the gun be dropped.  The armed man remained still for a moment and then ran back inside the Motel.  The Appellant remained at this point for several hours before being relieved.  The Appellant later learnt that the armed person had shot and killed himself with a pistol at the Motel some hours after the Appellant had left the scene.

1. By mid 2004 the Appellant was experiencing irritability, short temper and anger in the course of his duties as a Police Officer.  At about this time the Appellant made application for transfer from general duties to the Highway Patrol.  In September 2004 the Appellant’s duties were transferred to the Highway Patrol at Ballina, following which the Appellant noticed that his mood and temper had improved.

1. During the course of the second half of 2004 the Appellant experienced a number of troubling incidents involving high speed travel in the course of his duties.  The Appellant was also required to attend the coronial inquiry into the death of the armed man.  Following these experiences the Appellant found difficulty in attending work.

1. On 30 December 2004 the Appellant, who was rostered to perform two consecutive night shifts, found himself unable to attend work and was again crying uncontrollably.  The Appellant was unable to attend work and consulted General Practitioner, Dr Ruth Tinker, who certified his unfitness for one day.

1. The Appellant resumed duties and made contact with the Police Service Employment Assistance Program (“EAP”) and sought guidance with respect to the difficulties he had experienced.  He was informed that arrangements would be made to have a Psychologist examine him.

1. In January 2005 the Appellant attended premises near Nimbin where it had been reported that shots had been fired and that a property had been set on fire.  The Appellant approached the premises in a Police vehicle at which time a male person ran from the property shouting “Shoot me”.  The Appellant and other Officers sprayed the person with OC spray and apprehended the person.

1. During early 2005 the Appellant continued in his policing duties and experienced a number of troubling and upsetting incidents.  At that time the Appellant made an application for “parental leave” and that application was approved on 11 February 2005.  Following discussions with his Commander it was agreed that the Appellant’s leave would commence on 22 March 2005.  During discussion with his Commander it was indicated to the Appellant that his duties would be transferred from the Highway Patrol back to general duties.

1. On 1 March 2005 the Appellant consulted Mr Michael du Sautoy, Psychologist as arranged by the EAP.  The Appellant was advised to take two weeks sick leave and the Respondent was informed that the Appellant would be absent from work for a period of up to two weeks.  The Appellant then consulted Dr Dan Ewald who prescribed Zoloft as medication, and certified the Appellant as being unfit for work for two days.

1. Following his consultation with Dr Ewald the Appellant continued to experience distress and consulted by telephone, Dr David Howe of Orange, NSW.  Dr Howe had been the Appellant’s Family Doctor during an earlier period of years.  It appears that Dr Howe issued a medical certificate dated 12 April 2005 certifying that the Appellant was suffering post traumatic stress disorder, anxiety and depression and was unfit for work from 2 March 2005 and would remain unfit until 2 June 2005.

1. The Appellant has not attended for duty since 2 March 2005.  The medical certificate issued by Dr Howe was submitted to the Respondent’s Insurer in support of a claim for workers compensation benefits.  That claim was declined by the Insurer in June of 2005.

1. On 29 March 2006 the Appellant filed an Application to Resolve a Dispute (‘the Application’) with the Commission seeking orders with respect to his entitlement to weekly payments and medical expenses.  That Application alleged that the date of injury was:

“Nature and conditions of employment.  Frank injury some time in October 2003.”

The injury was described as:

“Demonstrable psychological or psychiatric injury, in particular post traumatic stress disorder and a major depressive disorder.”

1. That Application was heard by an Arbitrator on 30 June 2006 and determined on 11 July 2006.

THE DECISION UNDER REVIEW

1. The ‘Certificate of Determination’, dated 11 July 2006 records the Arbitrator’s order as follows:

“1.       Award for the Respondent.”

1. The Arbitrator’s Reasons for the Determination (‘Reasons’) were given on 11 July 2006.

ISSUES IN DISPUTE

1. The issues in dispute in the appeal are:

(i)whether the Arbitrator erred in failing to give due weight to the expert medical evidence and the clinical records relied upon by the Appellant with respect to the question as to whether an injury had been received by him and further that the Applicant’s employment was a substantial contributing factor to the injury in terms of the 1987 Act, and

(ii)whether the Appellant had been denied procedural fairness in the manner of the Arbitrator’s conduct of the proceedings.

ON THE PAPERS REVIEW

1. Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘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.”

1. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties that the appeal can proceed to be determined on the basis of these documents, 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

1. Before proceeding to deal with an appeal the Commission must determine whether the Application meets the requirements of section 352 of the 1998 Act.

1. 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.

1. Section 352(4) of the 1998 Act provides:

“(4)An appeal can only be made within 28 days after the making of the decision appealed against.”

1. It is submitted by the Respondent (para 2.16 of Submissions) that the Appellant has failed to comply with the abovementioned time requirement with respect to his ground of appeal arising from the Arbitrator’s ruling, made on 30 June 2006, with respect to the admission of documents being various medical records and a report from a Psychologist. I am of the view that the Respondent’s argument is misconceived. It is clear that the Appellant’s appeal is brought from the decision made by the Arbitrator on 11 July 2006. That appeal is, in part, founded upon an argument that procedural fairness was denied the Appellant.  The time requirements of section 352(4) of the 1998 Act have no application in circumstances where, as in the present case, an Appellant grounds arguments with respect to procedural fairness upon circumstances and rulings made during a hearing conducted by an Arbitrator outside the time frame prescribed.

1. The appeal, having been lodged on 7 August 2006, within 28 days of the Arbitrator’s decision, is in compliance with section 352(4) of the 1998 Act.

1. 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.

FRESH EVIDENCE

1. The admission of “fresh evidence” on appeal is governed by section 352(6) of the 1998 Act and Practice Direction No.6 sets forth the procedure for seeking leave of the Commission to adduce “new evidence”.  It provides as follows:

“New Evidence

Where a party seeks leave to give new evidence in relation to the decision appealed against, that party must serve a copy of the new evidence on the other parties to the dispute when serving the Application or Opposition.

In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.”

1. Practice Direction No.6 also provides that if new evidence is sought to be relied upon, the Application or Opposition to the Appeal must contain:

   “ -a schedule of the new evidence,
     -a copy of the new evidence,
     -a brief outline of the new evidence and the reasons why it was not given in the
      proceedings before the Arbitrator, and

   -submissions why the new evidence should be admitted.”

1. The Appellant indicates at paragraph 2.6 of his Application that he seeks to rely upon fresh evidence or evidence in addition to that received in relation to the decision appealed against.  Attached to the Application is a document headed “Schedule of New Evidence”.  That schedule enumerates the following documents:

“1.     Mr. du Sautoy dated 28 February 2005.

2.       Mr du Sautoy dated 2 March 2005.

3.       Mr du Sautoy dated 18 March 2005.

4.       Clinical notes of Applicant’s GP (Dr Howe, Dr Tinker and/or Dr Ewald.”

1. Immediately following the abovementioned “Schedule of New Evidence” the Appellant has attached to his Application a copy of a four page report dated 28 February 2005 signed by Michael du Sautoy, Clinical Psychologist, a letter dated 2 March 2005 from Mr du Sautoy to Dr David Howe as well as two pages of a further report signed by Mr du Sautoy.  Also attached to the Application were nine pages of handwritten notes which appear to be clinical notes of Medical Practitioners.  The authors of the handwritten notes are not identified however it is to be noted that reference to Dr Tinker is contained in the document headed “Complete Record as at 13/6/2006”.

1. I am of the view that the Appellant, in seeking to adduce fresh evidence in this appeal, has failed to comply with the requirements of Practice Direction No.6.  It is to be noted that the copies of documents authored by Mr du Sautoy appear to be incomplete and further the authors of the handwritten clinical notes are not identified with certainty.  It is reasonably clear, when one compares the handwritten notes of Dr Howe annexed to the Appellant’s original Application to Resolve a Dispute that the “fresh evidence” of Dr Howe consists of a more complete and up-to-date clinical record of his treatment of the Appellant.  A comparison of the typed notes of Dr Tinker included in the Appellant’s Application to Resolve a Dispute and the typed notes attached to the “Schedule of Fresh Evidence” indicates that the “fresh evidence” relied upon is an updated (to 13 June 2006) copy of Dr Tinker’s clinical records.

1. The Appellant has not, other than the submissions in support of the appeal generally, provided submissions in support of the admission of the new evidence.  Failure on the part of the Appellant to provide such submissions leads me to conclude that the Application to adduce the fresh evidence should be refused.  The absence of these submissions is not cured by the tenor of the general submissions in support of the appeal given the circumstance that those submissions were prepared by the Appellant’s representatives without the advantage of a transcript of proceedings and contain a number of misstatements and errors as to the procedure adopted by the Arbitrator at the hearing and indeed as to the nature of the Appellant’s Application with respect to the admission of evidentiary material.  These matters are more fully addressed below.

1. Having regard to all the circumstances, in particular having regard to the Appellant’s failure to comply with the statutory and procedural requirements earlier mentioned, I determine that the Appellant’s Application to adduce fresh evidence be refused.

EVIDENCE AND SUBMISSIONS

1. The Arbitrator’s Statement of Reasons for Decision (‘Reasons’) accompany the “Certificate of Determination” referred to in paragraph 15 and a copy of same is before the Commission.  Also before the Commission is a copy of transcript of the proceedings before the Arbitrator conducted on 30 July 2006.

1. Detail of the documentary evidence adduced on behalf of each of the parties before the Arbitrator is contained in paragraph 8 of the Arbitrator’s Reasons.  It is clear that the evidence before the Arbitrator included a number of documents which were the subject of Applications by each party to admit late documents.  The Arbitrator is recorded (at page 1, line 37) as noting that:

“Everything is in evidence.”

It may safely be inferred that the inclusion of material that had been the subject of Applications to “admit late documents” followed from rulings made by the Arbitrator prior to commencement of sound recording and, perhaps, during a teleconference which is recorded as having taken place on 8 June 2006.  There exists a handwritten document, forming part of the material before the Commission, which appears to be an incomplete record of matters dealt with by the Arbitrator on the occasion of that teleconference.  Of significance in this appeal it is recorded in that document that certain orders were made with respect to the issue of Directions to Produce addressed to Drs Howe, Ewald, Scurrah and Tinker.

1. The Statements of the Appellant which were before the Arbitrator outlined the history of his performance of duties with the Respondent and the onset of mood changes and anxiety following the events which have been summarised above.  Those Statements also outline the medical treatment received by the Appellant both prior to and since the cessation of his duties on 2 March 2005.  The Appellant states that by December 2004, following his attendance at the abovementioned inquest he:

“…began to find it increasingly difficult to attend work.  I started to believe that I might die on duty.  On some occasions I would find myself in the highway office almost crying, without any reason.”

The Appellant states that it was these symptoms that led him to consult Dr Tinker on 30 December 2004.  A certificate of Dr Tinker bearing that last mentioned date states:

“In my opinion, Luke J Miller is suffering from a medical condition, and will be unfit for work today, 30/12/2004.”

Dr Tinker’s notes relating to that consultation contain the following notations:

“Thursday December 30 204  16:15:07
Dr. Ruth Tinker
overwhelmed
stressed

Reason for visit:
Stress
Management:
ex 5/wk 30 mins
recreation
monthly outing with Beck
daily relation
1,5,10 yr plan
work counselling

Actions:
Letter written – re. CERTIFICATE.”

1. The Appellant states that he made enquiries about taking “parental leave” from his duties in February of 2005.  He stated:

“At the time I believed taking parental leave may solve my problems at work and at home.  I thought there would be less stigma attached to this than taking sick leave to get some help.  I thought I would avoid copping any flack from colleagues because I am “to [sic] junior” to be stressed.”

Approval of that application for parental leave was granted promptly and the Appellant was advised of that approval per email on the very day that he discussed the application with Staff Administration Officer, Glenis Powell.

1. The Appellant states that following approval of his leave application he was informed by his Commander, Mr Bruce Lyons, that, given his status as a trainee in the highway patrol he would lose that position and be transferred back to general duties.  Thereafter the Appellant received certain directions with respect to performance of duties by Inspector McKenna.

1. The Appellant states  that on 1 March 2005 he  attended a Psychologist, Mr Michael du Sautoy.  That consultation had been arranged following the Appellant’s contact in December 2004 with the Police Service Employment Assistance Program.  The Appellant states that Mr du Sautoy recommended that he commence sick leave “straight away” and that he consult his local doctor “for a medical certificate and for a prescription for medication to treat depression”.  A pharmacy receipt dated 29 March 2005 which was before the Arbitrator contains detail of prescription of Zoloft (50mg) for treatment of the Appellant prescribed by Dr Ewald.  There was no report before the Arbitrator from either Mr du Sautoy or Dr Ewald.

1. The Appellant ceased duties immediately following the consultation with Mr du Sautoy and remained absent from his duties up until the date of hearing before the Arbitrator.  The Appellant states that Dr Ewald provided him with a certificate for two days absence from work (1 and 2 March 2005) and that this certificate was furnished with the explanation from that Practitioner that:

“He couldn’t give me too long as it might come back on him.”

1. The Appellant states that this experience caused him great distress.  In the circumstances the Appellant consulted by telephone his previous Family Doctor who conducts a practice at Orange, NSW, Dr David Howe.  There was no report from Dr Howe before the Arbitrator however it is noted that WorkCover Certificates from Dr Howe dated 22 April 2005, 1 June 2005 and 16 August 2005, together with Dr Howe’s clinical notes relating to consultations between 2 March 2005 and 12 April 2005 were before the Arbitrator.  The entry with respect to 2 March 2005 in Dr Howe’s progress notes record:

“2/3/05  p/c PTSD re: 2 incident at work and following Coroner’s inquest.”

The entry, so far as can be discerned, notes “crying, suicidal ideation”.

That entry contains detail of Mr du Sautoy and the notation “time off work and Zoloft”.

1. The clinical notes of Dr Howe include an entry recorded on 4 March 2005 that the Appellant “seems more settled” and “does not want to go with WorkCover claim.  Looking forward to holiday.”  Those notes record two consultations thereafter in the month of March 2005 and on 12 April 2005 it is recorded “Now wants to proceed with WorkCover claim. M/C issued.”

1. The Appellant’s Statement records that he consulted Dr Mark Scurrah, Psychiatrist, on 22 September 2005.  There was before the Arbitrator a report from Dr Scurrah dated 4 January 2006 which indicated that the Appellant had been referred for treatment by Dr Howe.  That report detailed a number of consultations, the last being 18 December 2005.  Dr Scurrah stated that his consultations:

“have confirmed features of depression/post traumatic stress disorder.  Treatment appears to be improving both these conditions.”

1. The report had annexed a list of incidents which had been compiled by the Appellant for Dr Scurrah’s information and it may reasonably be inferred that that annexure constituted, in part, the history taken into account by Dr Scurrah in reaching his diagnosis.  Dr Scurrah’s diagnosis (using DSM IV) was:

   “A major depressive order, partially treated
   A post traumatic stress disorder.”

Dr Scurrah proceeded to state (at page 4 of his report):

“5.Mr Miller has experienced a range of traumatic events as a Police Officer.  The described traumatic incidents are likely to have caused his symptomatology.”

Dr Scurrah proceeded to state in that report that he was of the opinion that the Appellant was unfit to undertake normal duties as a Police Officer.  Dr Scurrah stated that the question of prognosis should be reserved for re-assessment “in 3 months”.

1. A WorkCover NSW medical certificate issued by Dr Scurrah dated 17 April 2006 was before the Arbitrator.  That certificate contained the notation of a diagnosis being PTSD/depression.  It was Dr Scurrah’s opinion that the Appellant was fit for suitable duties from 21 April 2006 to 21 May 2006 being capable of four hours work per day, three days per week being non-operational work with no contact with the public.

1. A supplementary Statement by the Appellant dated 30 April 2006 which was before the Arbitrator states:

“At this date I have not had any contact from NSW Police in regards [sic] my return to work and, as such, I have not been offered any suitable duties as outlined in my current medical certificate issued 17^th April 2006.”

1. The Respondent relied upon the evidence of a Clinical Psychologist, Gregory Sawyer whose report dated 9 June 2005 was before the Arbitrator.  That report records matters canvassed by Mr Sawyer in an interview with not only the Appellant but also Inspector Bill McKenna, Ms Glenis Powell (Staff Administration Officer Richmond Local Area Command), Sergeant McKenzie of the Highway Patrol and Dr David Howe, General Practitioner.  Dr Sawyer (at page 16 of his report) states:

“In summary I am not convinced Mr Miller has manifested any clear psychiatric condition and I believe the distress he experiences is a product of ambivalence about leaving the NSW Police Service given safety concerns he harbours juxtaposed against his ability to secure other employment in the local area that financially meets his personal and family needs.

I believe section 4 and section 9A are applicable and Mr Miller’s claim is not compensable.”

Mr Sawyer proceeds to suggest that the Appellant undergo psychological counselling and expresses the reason for treatment as being:

“To support Mr Miller recognise and overcome issues and/or barriers that are paralysing him making a decision in relation to remaining with the Police or electing to resign.”

1. The Respondent also relied upon a vocational report compiled by Ms Danforth of BASS Human Resources Pty Limited dated 29 May 2006.  That report details a number of occupations for which, in the author’s opinion, the Appellant was suited.  A supplementary report dated 12 June 2006 from Ms Danforth details “job availability”.

Submissions

1. The Appellant’s submissions on this appeal may be summarised as follows:

(i)The Arbitrator erred in concluding that the Appellant did not receive an injury arising out of or in the course of his employment with the Respondent by reason of his failure to properly consider and evaluate the evidence both lay and medical which address the question of “injury”.  It is the Appellant’s argument that the Arbitrator has failed to give proper weight to the evidence, in particular the medical evidence which relates to the question of nexus between the stressful events experienced by the Appellant in the course of his duties and the development by the Appellant of a psychological condition which is compensable having regard to all relevant provisions of the 1987 Act.

(ii)The Appellant further submits that given the manner in which the Arbitrator conducted the hearing, in particular the manner in which the Appellant’s application to adduce particular documentary evidence was addressed by the Arbitrator, he had been denied procedural fairness.  It is submitted that such denial of procedural fairness constitutes an error which is reviewable on appeal and an order is sought that the Arbitrator’s decision be revoked and substituted with a new decision or in the alternative that the matter be remitted back to an Arbitrator for determination in accordance with the decision and any directions of the Commission.

1. As noted above at paragraph 32 the Appellant’s submissions relating to the question of procedural fairness appear, to an extent, to be founded upon a misapprehension of the precise sequence of events which occurred in relation to argument concerning the admissibility of various documents.  It is asserted by the Appellant (at paragraph 23 of Submissions) that at the arbitration:

“…the Applicant sought to tender in to [sic] evidence from the documents produced the following documents:

1.          The report of Mr du Sautoy dated 28 February 2005.

2.          The report of Mr du Sautoy dated 2 March 2005.

3.          The report of Mr Du Sautoy dated 18 March 2005.

4.          Clinical notes of the applicant’s G.P (either Doctor Howe, Doctor Tinker and/or Doctor Ewald – please note we are not sure which one or more if counsel could not recall which one or ones he wished to tender).”

An examination of the transcript of proceedings appears below concerning the sequence of events and the nature of applications made by the parties with respect to the admission of documents.

1. It is the Appellant’s submission that certain (unrecorded) comments made by the Arbitrator at the hearing were of such a character as to mislead him and further that he was denied the opportunity to ask the Arbitrator to rule on the admissibility of certain documentary evidence.  It is put by the Appellant that these two features of the manner in which the hearing was conducted constitute, together, a denial of procedural fairness.

1. The Respondent in its submissions on this appeal seeks to support the Arbitrator’s analysis and evaluation of the evidence before him and in those submissions seeks to emphasise the significance of an absence of “contemporaneous” medical evidence which would link, in a relevant causal manner, the stressful events experienced in the course of his police service and the onset of any compensable psychological injury.

1. The Respondent seeks to support the Arbitrator’s preference for the opinion of Mr Sawyer, Psychologist, to the opinion as expressed by the Appellant’s treating Psychiatrist, Dr Scurrah.

1. With respect to the Appellant’s arguments relating to procedural fairness the Respondent in submissions attempts to summarise the sequence of events which took place on hearing before the Arbitrator and argues that the Arbitrator has “exercised his discretion fairly and has adopted a balanced approach to the applications of both parties” (paragraph 2.4 of Submissions).

1. The Respondent in its Submissions examines the transcript of proceedings with respect to the Arbitrator’s conduct and the Appellant’s response to the Arbitrator’s rulings and statements and seeks to support the Arbitrator’s manner of conducting the hearing.  Of significance the Respondent (at paragraph 2.15 of Submissions) submits:

“2.15  The Respondent submits that if Counsel for the Applicant felt that he had not been given sufficient opportunity to ventilate upon issues regarding the admissibility of such evidence, no indication was made during the hearing.  No request was made by Counsel for the opportunity to make further submissions on the issue.”

DISCUSSION AND FINDINGS

1. This appeal is brought pursuant to the provisions of section 352 of the 1998 Act.  Subsection (5) of that section provides:

“(5)An appeal under this section is to be by way of review of the decision appealed against.”

1. The nature of the “review” stated in the aforementioned subsection was considered by the NSW Court of Appeal in Aluminium Louvres and Ceilings Pty Limited v Xue Quin Zheng [2006] NSWCA 24 where the Court was there considering an appeal from a Deputy President of this Commission who had heard an appeal from an Arbitrator which involved arguments concerning suggested denial of procedural fairness. In his leading judgment Bryson JA (with whom Handley JA and Bell J agreed) said at [38]:

   “38. A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider.  See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator’s discretionary decision in controlling procedure may be based on the test stated in House v. R (1936) 55 CLR 499 at 504 – 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member. ….”

1. Having regard to the issues raised on this appeal it is convenient to deal firstly with the parties’ submissions with respect to the Appellant’s ground of appeal founded upon suggested denial of procedural fairness.  Before addressing the substance of those submissions it is important to determine with precision the sequence of events which took place before the Arbitrator at the hearing. In particular the nature of applications made by the parties with respect to the admission of evidence, any rulings or directions in relation to such applications made by the Arbitrator and detail of any statement or observation that may have been made by the Arbitrator with respect to the state of the evidence which was before the Commission.

1. The transcript of proceedings before the Arbitrator indicates (at page 1, lines 35 – 40) that initially the parties agreed with the Arbitrator’s proposition that “everything is in evidence” other than documents which had been produced under Direction made at an earlier teleconference conducted by the Arbitrator.  Those records were produced by Drs Howe, Tinker and Ewald.  It appears (at page 2, line 34) that the Respondent made application that the complete records of Dr Howe go into evidence before the Commission (an incomplete copy of Dr Howe’s clinical notes was before the Arbitrator and had been relied upon by the Appellant in his original Application).  The discussion between Counsel and the Arbitrator as recorded on page 3 of the transcript indicates that the Appellant’s Counsel resisted the tender of Dr Howe’s complete notes (page 3, lines 34 and 35).  The Arbitrator (at page 4, lines 9 – 11) declined to admit the documents into evidence.  Examination of this discussion, the sense of which is not always easy to discern, does not reveal an application by either party to have the lately produced notes of Drs Tinker and Ewald tendered as evidence before the Commission.

1. Following the Arbitrator’s ruling with respect to Dr Howe’s notes Counsel for the Appellant was invited to resume his address.  This Counsel did and it is revealed (at page 10 of transcript) that the Appellant’s Counsel in exchanges with the Arbitrator was surprised when informed that a report from the Psychologist, Mr du Sautoy was not in evidence.  It appears (at page 11 of transcript) that the Appellant’s Counsel understood that Mr du Sautoy’s report was annexed to the original Application.  That was not the case.  It was then that the Appellant’s Counsel stated that the absence of the evidence of Mr du Sautoy placed him:

“…in a difficult position because it is compelling evidence which is contemporaneous and predates the other reports.  It’s a report dated 28 February 2005 from the Psychologist to the treating GP, Dr Dan Elwood [sic].”

The recorded reference to Dr Elwood is obviously a typographical error and in context it appears that the reference should have been to Dr Ewald.

1. The Arbitrator responded to the Appellant’s Counsel (at page 11, line 51) by stating:

“There’s no report from Dr Elwood [sic], either.  I can’t allow it – it’s a bit late to
start –  – .”

1. It was then established that the Respondent’s Counsel objected to the tender of the report of Mr du Sautoy.  In those circumstances (transcript page 12, line 5) the Appellant’s Counsel indicated to the Arbitrator that he wished to take instructions:

“…to see whether we dismiss the proceedings and recommence.  It’s such a compelling piece of evidence that to do otherwise would be professionally inappropriate, and because it’s in my brief I assumed there was no issue.  Can I have a couple of minutes to take some instructions?”

1. The Arbitrator responded to Counsel’s request by granting a short adjournment and the recording device was turned off.

1. It is recorded by the Arbitrator (transcript page 12, line 19) that a 10 minute adjournment had taken place and an indication was given that the parties were back before him.  It was at this point that Counsel for the Respondent made an application that the Arbitrator disqualify himself from hearing the Application:

“…on the grounds of apprehended bias, that being that you had left the situation of being an Arbitrator and effectively entered into the case as it’s being run by the Applicant and perceived by the Respondent to be in favour of the Applicant.  On that basis, I would ask you to disqualify yourself.”

1. The application made by the Respondent’s Counsel was founded upon a statement made by the Arbitrator in the presence of both Counsel which is not recorded.  There is no evidence before the Commission as to what precisely was stated by the Arbitrator however there is an attempted summary by the Respondent’s Counsel (at page 12, lines 35 – 40) and by the Arbitrator (at page 13, lines 5 – 15).

1. The Arbitrator dealt with the application that he disqualify himself and refused the application.  The Appellant’s Counsel immediately sought permission to proceed with his address in response to which the Arbitrator stated:

“ARBITRATOR:       So, just for clarity, there is – you made an application to admit late evidence, and that has been refused.  OK?”

That proposition put by the Arbitrator was responded to by the Appellant’s Counsel stating:

“May it please the Commission….”

Counsel then proceeded with his address.

1. Following addresses by Counsel the Arbitrator reserved his decision and, as noted above delivered his Determination and accompanying Certificate on 11 July 2006.

1. The Appellant’s submissions with respect to the suggested denial of procedural fairness require careful examination having regard to the above summary of events as they occurred before the Arbitrator. With respect to the Appellant’s assertion found in paragraph 23 of his Submissions (noted above at paragraph 50 ), there is no record of the Appellant seeking to tender the documents enumerated in that submission other than the report of Mr du Sautoy dated 28 February 2005 (it is not explained why that report bears a date pre-dating the Appellant’s first consultation). The Commission file contains a letter dated 27 June 2006 addressed to the Registrar of the Commission which correspondence enclosed an Application to Admit Late Documents which was signed by the Appellant’s Solicitor also dated 27 June 2006. The documents which were the subject of the Application were described at page 2 of that document and the description was that of clinical notes of Drs Howe, Tinker and Ewland [sic]. The document noted that the relevant clinical notes were with the Commission and in the possession of the Respondent. There is no record of the Appellant’s representatives making application for leave to have that material admitted into evidence before the Arbitrator. I note in passing that a number of other documents which were the subject of separate Applications to Admit Late Documents by each party had found their way into evidence before the Arbitrator. Orders with respect to the admission of those documents into evidence appear to have been made during the conciliation process conducted by the Arbitrator prior to the commencement of the arbitration hearing or perhaps the earlier teleconference.

1. Notwithstanding the unsatisfactory state of the record, particularly relating to the making of applications and rulings in respect of late documents, it is clear that the Appellant’s Counsel, once alerted to the fact that there was no evidence of Mr du Sautoy before the Commission, unsuccessfully applied during the course of his address to have the report dated 28 February 2005 from Mr du Sautoy admitted into evidence.

1. As noted above it is not recorded nor is there any evidence available with respect to what precisely was stated by the Arbitrator during the 10 minute adjournment of the arbitration hearing.  What is perfectly clear is that what was said was sufficient to prompt an application on behalf of the Respondent to have the Arbitrator disqualify himself and, more to the point, it may be inferred that the Appellant was in some manner reassured by what was said by the Arbitrator that evidentiary shortcomings of his case would not be fatal to his claim.  It is said by the Appellant (paragraph 29 of Submissions):

“The Arbitrator’s comments led not merely the Applicant but also the Respondent, to believe that he was satisfied in the Applicant’s favour by the evidence before him in respect of the issues of injury, substantial contributory factor and as he put it “corroboration”.  The Arbitrator did not at any stage either during evidence or addresses ask the Applicant’s Counsel to address the issue nor did he give any indication that he was concerned by these issues.  More to the point he gave a positive indication that he was in fact satisfied in the Applicant’s favour in respect of these issues.”

1. In the absence of evidence as to the precise statement made by the Arbitrator I reject the Appellant’s assertion contained in the last sentence of the submission above quoted.

1. The substance of the Appellant’s complaint concerning the Arbitrator’s conduct of the hearing is that he erred in failing to admit documentation into evidence (Submission 27).  Such a submission can only be relevant to the recorded refusal by the Arbitrator to admit the report of the Psychologist, Mr du Sautoy.  Given all the circumstances as they can best be discerned on examination of the transcript and the documents before the Commission I am of the opinion that the Arbitrator’s rejection of the tender of Mr du Sautoy’s report was a proper exercise of discretion.  The document had not been furnished to the Respondent by the Appellant prior to the date of hearing, the tender was opposed by the Respondent and the tender of the document was made after closure of evidence and during the course of the Appellant’s Counsel’s address.  Admission of that document at that stage of the proceedings in the circumstances which I have attempted to summarise above would have caused prejudice to the Respondent and the document was rightly rejected.

1. The Appellant (at paragraph 31 of Submissions) argues that the Arbitrator:

“…has denied the Applicant the opportunity to seek instructions to withdraw this matter to refile.  He has also denied the Applicant the opportunity to ask the Arbitrator to rule on the admissibility of such evidence. …”

The Appellant relies upon principles concerning procedural fairness as stated by the High Court of Australia in Stead v State Government Insurance Commission (1986) 161 CLR 141 (‘Stead’) and the NSW Court of Appeal in Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 (‘Seltsam’).

1. It is not an uncommon occurrence in proceedings before the Commission that an Applicant Worker, when faced with deficiencies in his case or other defects impeding a likely favourable result, will discontinue the proceedings.  Such a step may be taken in the vast majority of such cases without penalty and the Applicant Worker is not (except so far as costs are concerned) prejudiced with regard to institution of a fresh Application.  This was precisely the course of action contemplated by the Appellant and his representatives when the short adjournment was sought during the course of addresses.

1. Notwithstanding the absence of evidence as to what was stated by the Arbitrator during that short adjournment it is clear that the Respondent was prompted to make an immediate application that the Arbitrator disqualify himself upon the basis of apprehended bias and further that the Appellant had consciously elected and instructed his representatives to proceed with the Application.

1. I accept the Respondent’s submission (at paragraph 2.14 of Submissions) that the Arbitrator had not denied the Appellant an opportunity to ask that a ruling on the admissibility of Mr du Sautoy’s report be made.

1. I have earlier quoted the contents of paragraph 29 of the Appellant’s Submissions (see paragraph 70 above).  Whilst it is not plainly enunciated by the Appellant the thrust of his complaint is that the conduct of the Arbitrator (that is the Arbitrator’s ruling as to Mr du Sautoy’s report and the Arbitrator’s statements during the course of the short adjournment), were such as to deny the Appellant an opportunity to present his case or meet the Respondent’s case. The Appellant’s Counsel was not invited to address the issue.  It is further stated by the Appellant that he was prejudiced by the failure of the Arbitrator to “give any indication that he was concerned by these issues”.  I take the Appellant  when using the term “issues” to mean, as stated earlier in Submission paragraph 29, those matters of “injury, substantial contributing factor and … “corroboration”.”

1. It was stated by Mason P ( Ipp JA agreeing) in Seltsam (at para 4):

“4.  As to procedural fairness, this judicial obligation is relevantly concerned with affording a reasonable opportunity to present or meet a case (Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 611[40]). That opportunity is vital both to the reality and the appearance of justice. Just outcomes are grounded upon the court or tribunal addressing the issues presented, particularly where litigation proceeds according to the adversary principle.”

The matter of Seltsam concerned the conduct of a Judge at first instance determining a case on a basis different to that put forward by the parties throughout a trial without notice of his intention to do so being given to the parties which conduct was found, on appeal, to constitute a denial of procedural fairness. Those facts may be distinguished from the present case.  However the general principle remains that a fair trial is a fundamental requirement of the rules of natural justice.  (See Jones v National Coal Board [1957] 2 QB 55 at 67.)

1. In the matter of Seltsam, Ipp JA (with whom Mason P agreed), summarised a number of authorities concerning departure from the rules of natural justice by reason of failure to afford procedural fairness (at paragraphs 69 – 77) and proceeded to state:

“78.  These cases illustrate the general principle that although the basis on which the parties conduct a trial does not bind the judge, if the judge contemplates determining the case on a different basis he or she must inform the parties of this prospect so that they have an opportunity to address any new or changed issues that may arise.

79. A failure so to inform the parties will ordinarily result in a denial of procedural fairness.  A new trial will be ordered if a party is not afforded a fair trail in circumstances where a properly conducted trial might possibly have produced a different result.  It will not ordinarily be necessary to lead evidence to prove that the denial of procedural fairness had the potential to affect the outcome; in most cases the facts will speak for themselves.”

1. The Respondent in its Submissions (paragraph 2.15 of Submissions) states:

“2.15    The Respondent submits that if Counsel for the Applicant felt that he had not been given sufficient opportunity to ventilate upon issues regarding the admissibility of such evidence, no indication was made during the hearing.  No request was made by Counsel for the opportunity to make further submissions on the issue.”

1. The last mentioned submission by the Respondent correctly states the circumstances which prevailed at the hearing.  However that submission must be evaluated on this appeal in the context of not only the known circumstances of the hearing but following an examination of the Arbitrator’s Reasons for his ultimate decision to enter an award in favour of the Respondent.

1. The Arbitrator at paragraph 29 of his Reasons under the heading “Findings and Reasons” stated:

“29.     The Applicant then saw Dr Ewald whom he says made certain diagnosis and also a psychologist Dr du Sautoy who he says made a certain diagnosis and provided treatment but again no evidence from either of these people was supplied to assist the Applicant.  I cannot rely on the Applicant’s statements of what they have diagnosed or said nor can I rely on the Applicant’s self diagnosis.”

1. The Arbitrator (at paragraphs 34 and 35 of his Reasons) states:

“34.    I am quite satisfied that the Applicant has been exposed to situations which have been distressful and difficult and with which he, like many other people I suspect would have, has had difficulty coping with.  However this is not sufficient for me to be able to find that the Applicant has suffered a psychological injury arising out or of in the course of his employment.  There is simply not the medical evidence available to me to make that finding.  I prefer the evidence of Mr Sawyer to Dr Scurrah, as Mr Sawyer has taken a much more detailed history, has investigated the circumstances in much greater detail.  Dr Scurrah has simply relied on the Applicant’s self reporting and provided a scant report with limited analysis which in any event occurs after his examination in September 2005, a considerable time after the date of injury or the date of notification of the injury.  There were other people who were consulted by the Applicant which is clear from the Applicant’s own evidence and from Dr Howe’s notes, but no evidence from these people has been put before the Commission.

35.     For these reasons I find that the Applicant did not suffer an injury arising out of or in the course of employment.”

1. It is clear from the Arbitrator’s Reasons as above quoted, that a significant factor in determining the outcome of the Application before him was the absence of evidence from practitioners “who were consulted by the Applicant”.  Included among those consulted was Mr du Sautoy.  The evidence of Mr du Sautoy had been excluded by the Arbitrator.  At the time the document was tendered Counsel for the Appellant characterised the contents of that report as being “an important document” and “a compelling piece of evidence”.  The Arbitrator’s reference to the absence of this evidence whilst not expressly stated by him in the course of his Reasons, may be taken to have been an expression of his lack of satisfaction as to the sufficiency of the Appellant’s case as well as a basis upon which an inference could be drawn (in accordance with principles as stated by the High Court of Australia in Jones v Dunkell (1959) 101 CLR 298) being that the calling of such evidence in the Appellant’s case would not advance his cause. If such inference was drawn the Arbitrator has ignored the explanation for its absence being his own ruling excluding it.

1. It is my opinion that the Arbitrator’s refusal to admit the report of Mr du Sautoy and his reliance upon the Appellant’s failure to adduce that evidence as being a foundation, in part, for his conclusion that there should be an award for the Respondent, was conduct in the course of proceedings which denied the Appellant procedural fairness, namely a fair trial.  Given the Arbitrator’s dissatisfaction with the state of the evidence it is my view that procedural fairness required that the Arbitrator inform the parties of his view and permit each to address the Commission.  That an adjournment of 10 minutes was granted by the Arbitrator for the purpose of giving the Appellant an opportunity to determine the future of his Application appears, on the material available, to have been neutralised by comments made by him during the course of that adjournment.  As earlier observed those comments were sufficient to provoke an application by the Respondent seeking disqualification of the Arbitrator.  I do not accept the Respondent’s submission (at paragraph 2.11 of Submissions) that, after the short adjournment, any misinterpretation or misunderstanding of the Arbitrator’s unrecorded words were clarified by his subsequent statement that he had “not sought in any way to intervene in the Applicant’s decision to (sic) intervene in what course of action the Applicant may or not take.”  That statement by the Arbitrator was made in the context of dealing with the disqualification application made on behalf of the Respondent and in no way addresses what in fact was said.  That the Appellant elected to proceed with his Application without further addressing the issue of the absence of Mr du Sautoy’s evidence indicates that the apprehension expressed by Counsel prior to the short adjournment as to the prudence of proceeding had, in some way, been overcome.  That could only have been effected by the statement of the Arbitrator during the adjournment.

1. A conclusion that procedural fairness has been denied a party entitles that party to a new trial, subject to the qualification that such a fresh hearing is not to be granted if such would be futile.  It was stated by the High Court in Stead (at 145):

“That qualification is that the Appellate Court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary Judge in the first trial.  An order for a new trial in such a case would be a futility.”

1. A determination of the question as to the futility or otherwise of granting a fresh hearing in the present case involves a determination of questions of fact rather than of law.  Given all the circumstances of the present case, in particular the state of the evidence adduced by the Appellant following the Arbitrator’s rulings, I am unable to conclude that a properly conducted hearing would be futile in that it would have the same result as occurred before the Arbitrator.

1. Having regard to my conclusion as to the absence of procedural fairness it follows that the Arbitrator has erred in law and that his Determination requires review.  In all the circumstances of the present case I am of the view that it is appropriate that the matter be remitted to another Arbitrator, for determination in accordance with this decision and directions made.

1. The fact that there is to be a rehearing before another Arbitrator obviates the need to address the matters raised by the Appellant in his Submissions under the heading “Failure to Consider Evidence” (paragraphs 2 – 18 of Submissions).  I so conclude having regard to the fact that those submissions concern matters which need to be canvassed at any new hearing and I conclude that it is inappropriate in this appeal to deal with the arguments raised with respect to the evidence.  (See discussion by Tobias JA (with whom Sheller JA and Pearlman AJA agreed) in Peakhurst v Fox and Ors; Newton v Fox and Ors [2004] NSWCA 74 at 37.)

DECISION

1. The decision of the Arbitrator, dated 11 July 2006 is revoked and the following order and direction is made in its place:

“The matter is to be remitted to another Arbitrator for determination in accordance with this decision and the following direction.

The Arbitrator is directed to adjudicate any application made by either party to adduce further evidence and to seek from each of the parties and to consider any supplementary submissions either written or oral the parties may elect to put.  Both the question of further evidence and submissions to be dealt with by the Arbitrator in accordance with a timetable determined by him or her before proceeding to determine the Application.

No order as to costs.”

COSTS

1. No order as to costs of this Appeal.

Kevin O’Grady

Acting Deputy President  8 March 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