Naidu v State of New South Wales
[2019] NSWWCCPD 59
•22 November 2019
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |
| STATUS: Summons seeking leave to appeal dismissed – Naidu v State of New South Wales [2020] NSWCA 147 | |
| CITATION: | Naidu v State of New South Wales [2019] NSWWCCPD 59 |
| APPELLANT: | Mala Ranjini Naidu |
| RESPONDENT: | State of New South Wales |
| INSURER: | EML agent for icare Insurance for NSW |
| FILE NUMBER: | A2-8807/13 |
| ARBITRATOR: | Mr R Foggo |
| DATE OF ARBITRATOR’S DECISION: | 13 October 2014 |
| DATE OF APPEAL DECISION: | 22 November 2019 |
| SUBJECT MATTER OF DECISION: | Application to extend time pursuant to r 16.2(5) of the Workers Compensation Commission Rules 2011, explanation of delay, ‘exceptional circumstances’, fairly arguable appeal, the nature of appealable error |
| PRESIDENTIAL MEMBER: | Deputy President Michael Snell |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant |
| Mr P Perry, counsel | |
| Carroll & O’Dea Lawyers | |
| Respondent | |
| Mr A Parker, counsel | |
| TurksLegal | |
| ORDERS MADE ON APPEAL: | 1. The identity of the respondent on the appeal is amended to “State of New South Wales”. |
| 2. Leave granted to the appellant to rely on its Further Amended Application to Appeal lodged on 16 September 2019. | |
| 3. The application to extend time pursuant to r 16.2(5) of the Workers Compensation Commission Rules 2011 is refused. | |
INTRODUCTION
Mala Ranjini Naidu (the appellant) was employed by the South Eastern Sydney Area Local Health District at the St George Private Hospital from 14 May 2007. The correct identity of the respondent for the purpose of these proceedings is the State of New South Wales.[1] The proceedings are amended accordingly. The appellant’s job was full-time, and involved collecting blood samples for pathology testing, with associated recording and transportation of the samples.[2] She injured her right ankle and foot on 5 November 2007, when she twisted the ankle while pushing a trolley.[3] A compensation claim was accepted. The appellant was off work (subject to a short unsuccessful attempt to return) from 6 November 2007 to 31 March 2008, when she resumed on restricted hours. The appellant alleged there were incidents of bullying after she resumed work. The appellant went off work from 14 July 2008, following an alleged assault by her supervisor, and did not resume.[4]
[1] Crown Proceedings Act1988, State of New South Wales v Bishop [2014] NSWCA 354, 14 DDCR 1, [26]–[28].
[2] Appellant’s statement 16/12/12, [15]–[17], Application to Resolve a Dispute (ARD), pp 473–474.
[3] Appellant’s statement, [28]–[29], ARD, p 475.
[4] Appellant’s statement, [39]–[85], ARD, pp 476–484.
The appellant alleged a primary psychological injury resulting from her treatment when back at work after the ankle injury. The claim is for lump sum compensation pursuant to s 66 and the former s 67 of the Workers Compensation Act 1987 (the 1987 Act), in respect of 22 per cent permanent impairment for psychiatric injury. The respondent denied liability on the basis that the appellant had not suffered a primary psychological injury. It contended that any psychological injury was secondary to the ankle injury, and therefore the recovery of lump sum compensation was precluded by s 65A of the 1987 Act.
THE ARBITRAL PROCEEDINGS AND DECISION
The proceedings were listed for arbitration hearing on 26 September 2014. Mr Lucas appeared for the appellant and Mr Barnes appeared for the respondent. Mr Barnes made an application to cross-examine the appellant, which the Arbitrator refused on the basis it may be injurious to the appellant’s health, referring to a report of Dr Swinbury. Both counsel addressed, and the Arbitrator reserved his decision. A Certificate of Determination was issued dated 13 October 2014, accompanied by eight pages of reasons.[5] The Arbitrator made an award in favour of the respondent.
[5] Naidu v South Eastern Sydney Local Health District, 8807/13, 10 October 2014 (Reasons).
The Arbitrator briefly summarised the nature of the dispute. He noted the respondent raised a credit issue, on the basis of the appellant’s Facebook account, together with a surveillance report and associated video evidence.[6]
[6] Reasons, [1]–[3].
The Arbitrator described the appellant’s “first instance of psychological decompensation” as occurring on 11 March 2008, following a meeting with her supervisor (Ms Espiritu) and rehabilitation co-ordinator (Ms Lynch). Dr Hanif’s notes on 12 March 2008 recorded various emotional problems. The Arbitrator said the appellant’s statement was silent regarding what happened at the meeting. The Arbitrator said there was no mention of inappropriate behaviour on the part of her supervisor on that date, in the appellant’s statement. The Arbitrator described this as “understandable”, as Ms Lynch, the rehabilitation co-ordinator was present, and every complaint the appellant made about her supervisor allegedly occurred “with no other persons present”. The Arbitrator described the omission from the appellant’s statement, of the circumstances leading to that decompensation, as “troubling”. He said if the omission was because the appellant had forgotten the incident, it cast “grave doubt on the reliability of the [appellant’s] evidence”. Alternatively, if it was “a deliberate elision” it was at odds with the allegation of injury, as there was no evidence that the presentation on 12 March 2008 “resulted from anything done or said by Sol Espiritu”. [7]
[7] Reasons, [16]–[19].
The Arbitrator noted consultations with the appellant’s general practitioner, Dr Hanif, on 25 March 2008 and 1 April 2008, for problems with the right foot. The appellant at these was “very emotional, crying all the time”, but did not give a history linking the emotional state with anything done by her supervisor.[8] The Arbitrator noted a number of consultations with Dr Hanif during May to June 2008 at which “emotional upset or distress” was not a feature. Then on 27 June 2008 the appellant looked “very anxious emotional and teary” when complaining to Dr Hanif about right foot, ankle and knee pain. The Arbitrator referred to a lengthy entry in the doctor’s notes on 8 July 2008. The note included a complaint of stress at work with her supervisor. It also said “Due to her ongoing, prolonged pain esp aggravated by weight-bearing has pushed her right and was situation of post-traumatic disorder”.[9]
[8] Reasons, [22].
[9] Reasons, [25]–[27].
The Arbitrator said that Dr Hanif had “considered all of the factors involved”, and described the appellant’s psychological condition as “post-traumatic disorder”. The Arbitrator said he agreed that the psychological symptoms at that stage were “substantially and predominantly caused by her inability to cope with ongoing severe ankle and knee and leg pain as a result of the physical injury”. Because of the “extensive and constant contact” between the appellant and Dr Hanif, the Arbitrator described this assessment as “definitive and I accept it”. The Arbitrator referred to the next entry in Dr Hanif’s records, 11 July 2008. It described the appellant as “anxious and depressed teary”, and the complaints were of an aggravation of right leg symptoms, not being able to work the previous day, and not getting much help on her return to work. The Arbitrator described this as confirming Dr Hanif’s opinion on 8 July 2008.[10]
[10] Reasons, [30]–[31].
The Arbitrator referred to the alleged assault on 14 July 2009. He said it was described in considerable detail in Dr Hanif’s note. The appellant’s supervisor, Ms Espiritu, denied it. The appellant said she reported it immediately to an unidentified person in pathology, but there was no statement from that person. There was no formal complaint to the respondent. When the appellant sought to make a complaint to the police they declined to deal with it. There were no statements from people identified in the appellant’s statement, to whom she said she complained about the supervisor’s conduct. The Arbitrator described the attempt to involve the police in what was “minor physical contact” as “inappropriate and suggestive of some agenda”.[11]
[11] Reasons, [32]–[35].
The Arbitrator referred to the appellant’s consultation with Dr Lam, a pain specialist, on 17 July 2009, three days after the alleged assault. Dr Lam recorded a history of the assault, of constant harassment of the appellant by her boss, and of symptoms that included difficulty concentrating, stress and forgetfulness and being placed on antidepressants by her general practitioner. The recorded complaints related solely to persistent pain, and there was no “enquiry or recommendation that the [appellant] undergo psychological or psychiatric treatment”. On 11 December 2008, Dr Lam noted the appellant was depressed and had mental health issues, and received a history that the appellant “stopped work due to her persistent pain”. The Arbitrator said this was “completely at odds” with the appellant’s claim that she stopped work due to the bullying behaviour of her supervisor”.[12]
[12] Reasons, [36]–[38].
The Arbitrator referred to the appellant’s Facebook account. He said there were no dates on the images and the appellant did not, in her statement, identify when the images were taken. The appellant referred to images of her on a trip to Canberra as resulting from “considerable encouragement by her family”, and said she had difficulty coping with the visit. The Arbitrator said the pictures on the account were “completely at odds” with the appellant’s description of the images in her statement dated 16 December 2012.[13]
[13] Reasons, [39].
There was surveillance material from Brookfield Investigations. The Arbitrator noted a history, relied on by Dr Gertler, psychiatrist, when he assessed the appellant. The appellant told the doctor she had:
“… ‘no social life. May occasionally go for a walk or to a local shopping centre with others’, is ‘unable to leave home unless accompanied by others because of anxiety and loss of self-confidence’, and ‘has lost contact with all of her friends’.”[14]
[14] Reasons, [40].
The Arbitrator described the surveillance material as “even more at odds” with the appellant’s description of her psychiatric condition. The Arbitrator said he did not accept the appellant’s explanation that what was depicted did “not represent a normal day”, describing this as “not believable”. He said the appellant’s behaviour in the surveillance material was:
“… markedly inconsistent with what she has told Dr Gertler in respect of her social and recreational activities, travel and social functioning. In addition, the demeanour of the [appellant] as depicted in her Facebook images and in the surveillance material is completely contrary to how the [appellant] has endeavoured to depict her day to day life in her statement and in the histories given to Dr Gertler and other doctors.”[15]
[15] Reasons, [41].
The Arbitrator said he found the surveillance material “telling and conclusive”, and accordingly, he was “not prepared to accept the evidence of the [appellant] unless it is independently corroborated”. The Arbitrator said it was “far more likely” that the version of events in the supervisor’s statement was, in fact, what happened. He accepted that version in preference to the version of the appellant.[16] The Arbitrator referred to the test of causation stated by Kirby P in Kooragang Cement Pty Limited v Bates.[17] He referred to the inadequacy of the appellant’s explanation of the discrepancies between her statement and histories, compared with the surveillance and Facebook material. He said it raised the question of whether the psychological complaints were “exaggerations or falsehoods from their very inception”.[18]
[16] Reasons, [42].
[17] (1994) 35 NSWLR 452, 463G–464C.
[18] Reasons, [43]–[48].
The Arbitrator made an ultimate finding of fact:
“In respect of the incident which occurred on 14 July 2008 at work with Sol Espiritu, for the reasons I have set out above, I accept [the] version of events given by Sol Espiritu who denies bullying or any sort of behaviour that could be productive of psychological injury. Rather, it is apparent that the [appellant] has sought to characterise a trivial incident in which she possibly may have been spoken to sharply as a physical assault, which she did not report to her employer but rather endeavoured to involve the police. In my view, the [appellant’s] actions in this regard were not actuated by malice or malingering but rather because she was no longer able to cope with the persisting and unrelenting pain in her right ankle and leg, exacerbated by the apparent inability of the medical profession to alleviate her pain and restrictions, and also the lack of support and understanding that she had experienced with her employer and Sol Espiritu in this regard. Even if the [appellant] actually perceived Sol Espiritu’s behaviour to be bullying, it is clear from the contemporaneous notes of Dr Hanif that this was not the substantial contributing factor to the onset and persistence of her psychological symptoms, but rather it was her inability to cope with persistent and ongoing pain as a result of her physical injuries.”[19]
[19] Reasons, [49].
The Arbitrator also found:
“…if the [appellant] did sustain a psychological injury in the course of or arising out of her employment with the respondent, for the reasons stated above I find that it arose in consequence of her physical injuries of 7 November 2007 and is therefore a secondary psychological injury.”
The Arbitrator entered an award in favour of the respondent.
ON THE PAPERS
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.”
In response to the Direction referred to at [37] below, the respondent’s solicitors suggested that an oral hearing should be held on the basis that the matter was complex. I was not persuaded that this was desirable. Having regard to Practice Directions Nos 1 and 6; the documents that are before me, and the submissions by the parties, 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.
THRESHOLD AND PROCEDURAL MATTERS
There is no dispute between the parties that the threshold requirements as to quantum pursuant to ss 352(3) of the 1998 Act have been met. The appeal is substantially out of time, and the appellant’s application to extend time is opposed by the respondent.
The appellant was self-represented at the time the current appeal proceedings were instituted. The appellant’s Application to Appeal was registered on 10 May 2019. On 17 May 2019 a Direction was issued, requiring the appellant to lodge an Amended Application complying with Practice Direction No 6. The appellant lodged an Amended Application on 31 May 2019. The respondent lodged a Notice of Opposition on 12 July 2019. The Commission, in an email communication dated 15 July 2019, directed the respondent to lodge an amended document in which, if matters were said to have been “addressed elsewhere”, the location of the relevant submission “elsewhere” was identified. The respondent lodged an Amended Notice of Opposition dated 19 July 2019 in compliance with this. References in this decision to the Notice of Opposition are to the document lodged on 19 July 2019. The respondent asserted that the Amended Appeal was not compliant with Practice Direction No 6.
The appellant then instructed solicitors, and those solicitors lodged submissions in reply, drafted by counsel, on 12 August 2019. The Commission issued a Direction dated 19 August 2019, which included the following:
“10. The submissions in reply lodged on 12 August 2019 appear to be outside the scope generally of submissions in reply.
11. It appears that the appellant may be seeking to amend her grounds of appeal and/or submissions in support of the Amended Appeal.
12. If this is the intent, a draft further amended grounds of appeal and submissions in support should be lodged and served, and leave sought to rely on that document.
13. If the intent is not to further amend the grounds of appeal and submissions in support, amended submissions in reply should be lodged that are within the scope of submissions in reply.”
The Commission issued a further Direction dated 26 August 2019, directing the appellant to lodge and serve any Further Amended Application, accompanied by submissions in support of that grant of leave. Leave was to be determined by the Presidential member to whom the matter was allocated. The respondent was given time to lodge submissions in response to the Further Amended Application, including going to the question of leave. The appellant was given time to respond to these further submissions.
The appellant lodged a Further Amended Application on 16 September 2019. For short reasons which follow, the appellant is given leave to rely on that document. The respondent lodged further submissions on 8 October 2019. This document directed itself to the further grounds and submissions that had been raised in the appellant’s Further Amended Application to Appeal. The respondent’s submissions did not oppose the granting of leave to rely on the document, and did not assert any prejudice. The earlier Applications to Appeal were lodged at a time when the appellant was unrepresented. Leave is granted to the appellant to rely on the Further Amended Application. References in this decision to the Application to Appeal are to that document, unless the contrary is specifically stated. It should be noted that the original Application, and the First Amended Application, each had a large volume of documentary evidence attached. No such material is attached to the Application to Appeal on which the appellant now relies. The submissions in the Application to Appeal now state that “No application is made to bring fresh, additional or substituted evidence.”
The appellant lodged further submissions in reply on 21 October 2019.
THE APPLICATION TO EXTEND TIME
Section 352(4) of the 1998 Act provides:
“An appeal can only be made within 28 days after the making of the decision appealed against.”
Subclauses (5) and (6) of r 16.2 of the Workers Compensation Commission Rules 2011 (the Rules) provide:
“(5) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.
(6) A party who seeks an extension of time as referred to in subrule (5) must—
(a) as soon as practicable give notice to the other parties of the intention to seek the extension, and
(b) lodge and serve with the application to appeal an application for the extension of time, including full details of the arguments to be put in favour of granting the extension.”
The applicable principles, taken from Gallo v Dawson,[20] were summarised by Roche DP in Allen v Roads and Maritime Services as involving the need to have regard to the following:
“(a) the history of the proceedings;
(b) the conduct of the parties;
(c) the nature of the litigation;
(d) the consequences for the parties of the grant or refusal of the application for the extension of time;
(e) the prospects of the applicant succeeding in the appeal, and
(f) upon expiry of the time for appealing, the respondent has a vested right to retain the judgment unless the application for extension of time is granted.”[21]
[20] [1990] HCA 30; 93 ALR 479; 64 ALJR 458 (Gallo v Dawson).
[21] [2015] NSWWCCPD 39, [31].
The respondent, in its submissions, refers to Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd, in which the Court of Appeal said:
“The primary considerations on an application for leave to extend time within which to appeal are:
(a) the extent of the delay and the reasons therefor;
(b) the prejudice to the applicant if the application were to be refused;
(c) the prejudice to the defendant from the delay if the application were to be granted;
(d) the prospects of success on the proposed appeal.”[22]
[22] [2014] NSWCA 34 (Land Enviro Corp), per Basten JA (Beazley P and Leeming JA agreeing), [9].
Appellant’s submissions
Submissions on time are made in the Application to Appeal. The appellant states that time expired on 10 November 2014, and this appeal was lodged on 10 May 2019. She submits it is about four years out of time. The appellant describes instructing three lawyers over the years from when the arbitral decision was issued, until she became self-represented in May 2018. The appellant’s statement deals with each of these, as part of her explanation of delay. As those lawyers have had no opportunity to answer anything that is said about them, I have not named them. They were Firm One (from October 2014 to November 2016), Firm Two (from 19 October 2016 to 22 November 2017) and Firm Three (from 22 November 2018 [sic, 2017] to 8 May 2018). The appellant submits that her previous solicitor, from Firm One, attempted to file an appeal on 10 November 2014 by email, but the server “rejected the Application because it [was] voluminous”. She submits she sought assistance from the Supreme Court which did not help, and when she filed the appeal on 10 May 2019 she did so “on my own”. She submits that she has “good grounds of appeal with a chance of success”. Thus, there would be substantial injustice if she lost the right to appeal.[23] These submissions are essentially consistent with a statement of the appellant dated 8 May 2019 (one of two of that date). [24]
[23] Appellant’s submissions, [2.1].
[24] It is not appropriately paginated, but appears in the Amended Application to Appeal lodged 31 May 2019 as the last of the typed documents, before the multiple attachments numbered from pp 1 to 302. I will describe this as the ‘time statement’. There is another longer statement by the appellant, of a more general nature, with the same date, that appears immediately prior to the time statement.
Further submissions are made in the appellant’s submissions in reply. The appellant there submits that Firm One lodged an appeal in time, on 11 November 2014, referring to a statement from a solicitor from the firm dated 10 November 2014 (solicitor’s statement).[25] That statement is at page 372 of the Amended Application to Appeal lodged on 31 May 2019. Neither of the earlier Applications to Appeal, lodged 10 May 2019 and 31 May 2019, is now relied on, leave having been granted to rely on the Further Amended Application lodged 16 September 2019. The appellant does not now seek to rely on fresh, additional or substituted evidence (see [23] above). The status of the solicitor’s statement dated 10 November 2014 and the appellant’s statement dated 8 May 2019, on this appeal, is unclear. For reasons which appear below, I have concluded that the preferable course is to approach the extension of time application on the basis that I may have regard to that material.
[25] Appellant’s submissions in reply, [6], referring to Rockhard Products Pty Ltd v Economidis [2009] NSWWCCPD 159, [30].
The solicitor’s statement dated 10 November 2014 refers to lodgement of the original Application to Appeal on 11 November 2014. The statement seeks a further 14 days to file a “complete Appeal Against Decision of Arbitrator with properly attached to [sic] documents, chronology, appeal grounds and submissions”.[26]
[26] Amended Application to Appeal lodged 31 May 2019, p 372.
In the ‘time’ statement, the appellant said that, after the Certificate of Determination was issued on 13 October 2014, she requested a meeting with her then lawyers, who acted for her on the arbitration. She said her request for a meeting with the solicitor handling the claim was refused. She said since that time she telephoned about 20 lawyers, requesting a review of the matter and consideration of an appeal. She said the majority declined to see her. She said that since 13 October 2014 she has seen seven lawyers (whose firms she identified, save for two whose names she could not recall) at their offices. She said that none of these would discuss the matter with her. The solicitor from Firm One was the first solicitor who agreed to read the decision and discuss it. This occurred on 4 November 2014. The appellant said that the solicitor said that he needed more documents. She said she obtained a copy of the Commission file, from the Commission, and on 10 November 2014 provided this to Firm One. She said the solicitor from that firm was the first who showed any interest in reviewing the matter.[27]
[27] Time statement, [5]–[14].
The appellant said that she did not have any idea of what Firm One was doing with her appeal. She stated that for nearly two years the solicitor told her “everything is OK”. The appellant said she then consulted Firm Two, who kept her file from 19 October 2016 to 22 November 2017. She said she then saw Firm Three, who kept her file from 22 November 2017 to 30 May 2018. She said that she got no help from these firms. She said that she spoke to a Registrar of the Supreme Court to see if she could lodge her case in the Supreme Court. She decided she “better try an appeal for time out ground if I can get justice at Workers Compensation Commission”.[28]
[28] Time statement, [16]–[21].
The appellant submits the circumstances are “exceptional”, but if not, the absence of exceptional circumstances is not fatal.[29] The appellant refers to Land Enviro Corp, on which the respondent submitted. The appellant submits the reasons for delay are those “set out and relied upon”. It submits there is prejudice if the appellant loses her right to appeal, and her potential entitlement to a substantial lump sum award. She submits prejudice is not raised by the respondent. The appellant submits the submissions on the merits of the appeal indicate the prospects of success favour an extension.[30]
[29] Appellant’s submissions in reply, [6].
[30] Appellant’s submissions in reply, [7]–[11].
Respondent’s submissions
The respondent’s submissions refer to the procedural difficulties associated with the first appeal lodged in 2014. The Commission issued a Direction dated 13 November 2014, requiring procedural compliance. Due to non-compliance with that Direction, the Commission rejected the appeal on 27 November 2014. The respondent submits there is no satisfactory explanation for why the original appeal was not filed in time, or why the Direction seeking procedural compliance was not complied with.[31]
[31] Respondent’s submissions, [10]–[12].
The respondent refers to the evidence in the appellant’s statement dated 8 May 2019. It submits the appellant has not set out “in a complete and fulsome way” the efforts she made from 2014 to date to pursue her claim. It submits the delay is not adequately explained. The respondent refers to the evidence from one of the appellant’s earlier solicitors, that the appellant’s proposed appeal did not have reasonable prospects of success.[32] The respondent submits the appellant “does not say what she did with that advice. Presumably she accepted it”.[33] The respondent submits the appellant requires “exceptional circumstances”, and needs to show there would be demonstrable and substantial injustice if time were not extended. The respondent submits the prospects of success are minimal, and the appellant does not come close to satisfying the criteria in Land Enviro Corp.[34]
[32] Letter from Firm Three dated 30 May 2018, Amended Application to Appeal lodged 31 May 2019, pp 438–439.
[33] Respondent’s submissions, [13]–[14].
[34] Respondent’s submissions, [15]–[17].
Submissions pursuant to a Direction
On 6 November 2019 a Direction was issued by the Commission in the following terms:
“The parties’ attention is drawn to the following attached documents that may be relevant to the issue of time:
1. Direction of the Registrar dated 13 November 2014;
2. Letter dated 27 November 2014 by Kathryn Camp [Acting Senior Research Associate and Presidential Unit Manager] addressed to [Firm One];
3. File Note dated 8 December 2014 by Kathryn Camp, and
4. File Note dated 19 December 2014 by Kathryn Camp.
Leave is granted to the parties to lodge any further submissions on or before 4.30 pm on Wednesday 13 November 2019 relating to the attached documents in respect of the appellant’s application to extend time.”
The respondent lodged submissions in response to this Direction on 8 November 2019. It submits the attached material does not alter the substance of the respondent’s submissions. It submits the evidence does not establish negligence on the part of Firm One, and if it did have that tendency it would be appropriate that the solicitor have an opportunity to respond. It submits the appellant had multiple further opportunities to correct the deficiencies in the appeal that was lodged in 2014, and did not do so. It submits the appellant was given details of ILARS for further assistance. It submits that, even if the solicitor at that time was negligent, this would not be a sufficient reason to extend time. It submits the appeal is doomed to fail on its merits in any event.
The appellant lodged submissions in response to the Direction on 14 November 2019. The appellant accepts that the documents numbered ‘1’ and ‘2’ in [37] above were received by the appellant’s then solicitor. It submits the requirements in the Direction dated 13 November 2014, in the earlier appeal, are now complied with. The appellant submits she has now taken the advice proffered by the Presidential Unit Manager, referred to in ‘3’ and ‘4’ in [37] above. She has contacted ILARS and obtained the services of her current solicitors, and relies on her existing submissions going to the explanation for delay. She notes the respondent does not assert prejudice.
Consideration
Rule 16.2(5) of the Rules requires that the appellant lodge and serve, with the Application to Appeal, an application for the extension of time, including full details of the arguments to be put in favour of granting the extension. The Application to Appeal and the Amended Application to Appeal, lodged on 10 May 2019 and 31 May 2019 respectively, included attached material that fell within this description. Those Applications also included much other material, on which the appellant no longer seeks to rely (see [23] above). The application to rely on fresh evidence[35] is specifically withdrawn.[36]
[35] Appellant’s submissions, [2.5].
[36] Appellant’s submissions, [Introduction to amended submissions].
There are submissions on the extension of time attached to the Application to Appeal. Evidentiary material relevant to the application to extend time is not attached to the Application to Appeal (lodged on 16 September 2019) on which the appellant ultimately relies. However, the Chronology from the Amended Application to Appeal (lodged on 31 May 2019) is attached to the Application to Appeal on which the appellant now relies, and the Chronology refers to the documentation attached to the previous Application.
The parties, submitting on the application to extend time, have relied on documents relevant to the extension which were attached to the previous versions of the Application to Appeal. Both parties have proceeded on the basis that such material is in evidence for the purposes of the extension application. Examples are the statement of the solicitor from Firm One dated 10 November 2014 (see [30] to [31] above), referred to by both parties, and the appellant’s time statement dated 8 May 2019 (see [32] above), referred to by both parties. This is understandable, given that both parties initially addressed on the time issue before the Application to Appeal, which is now relied on, was lodged. The appropriate course is to regard the documentary material from the Amended Application, on which the parties addressed in respect of the extension application, or which is plainly relevant to the explanation of delay, as before me for the purpose of dealing with the application to extend time. This is generally consistent with s 354 of the 1998 Act, and with the approach which the parties have taken to such material.
The explanation of delay
An initial matter is the status of the Application to Appeal lodged in November 2014. It is variously submitted that the attempt to lodge the document electronically was unsuccessful because of its volume, that it was lodged within time and that it was lodged out of time. The last day for lodging the appeal in time was, as the appellant submits, 11 November 2014. As the appellant also submits, the appeal was lodged, within time, on that date.[37] As the respondent submits, a Direction was issued to the parties on 13 November 2014. It noted a request by the solicitor from Firm One for “a further 14 days for filing a complete appeal”. It directed the appellant to file an Amended Application to Appeal, complying with Practice Direction No 6, on or before 24 November 2014.
[37] Appellant’s submissions in reply, [3]–[5], Dennis v NSW Fire Brigades [2007] NSWWCCPD 165, [23].
On 27 November 2014, a Delegate of the Registrar wrote to the appellant’s solicitor (from Firm One) with a copy to the solicitors for the respondent. The letter noted that an Amended Application to Appeal was lodged on 24 November 2014, and that it remained non-compliant with Practice Direction No 6 in various specified respects. It stated that as the Registrar’s Direction dated 13 November 2014 was not complied with, the appeal was rejected and the file was closed.
The Commission file includes file notes of telephone conversations on 8 December 2014 and 19 December 2014, involving the Presidential Unit Manager, the appellant, and the appellant’s cousin Mr Nishwa (who was to assist with translation if necessary). On 8 December 2014 the Presidential Unit Manager explained why the appeal had been rejected and explained that if the appellant wished to further pursue the appeal, it would be necessary to lodge an appeal out of time, accompanied by submissions addressing why leave should be granted. The file note said that the Presidential Unit Manager strongly recommended that the appellant contact Firm One for further advice, or alternatively seek advice from another solicitor. It said that the Presidential Unit Manager provided details of the Law Society’s Solicitor Referral Service. The file note said that the appellant appeared to understand the reason why the appeal had been rejected and the options available to her.
A file note from 19 December 2014, involving the same people, recorded that the appellant had attempted to contact the solicitor from Firm One with no success. The Presidential Unit Manager said she again explained why the appeal had been rejected, and Mr Nishwa said that they both understood. Mr Nishwa said that the appellant “wanted the matter appealed”. The Presidential Unit Manager said she advised this would need to be raised with the solicitor from Firm One. In the alternative, she gave contact details for “the Law Society or ILARS for legal representation”.
The appellant submits that Firm One remained her solicitors until November 2016 (her time statement said that she engaged Firm Two from 19 October 2016). The appellant said that she did not have any idea what Firm One was doing with her appeal, and for nearly two years the solicitor told her that everything was “OK”.[38] The period from 19 December 2014 to 19 October 2016 (a little less than two years) is explained only on the basis that the appellant left the matter in the hands of her then solicitors, who told her that everything was “OK”. The information in the time statement and the relevant submissions in the Application to Appeal do not go into further detail than that. Without going into the substance of the later medical reports, Firm One obtained a further report from Dr Hanif (the original treating general practitioner) dated 1 April 2015,[39] and from Dr Sringeri (the treating psychiatrist) dated 23 August 2015.[40]
[38] Time statement, [16].
[39] Amended Application to Appeal lodged 31 May 2019, pp 373–376.
[40] Amended Application to Appeal lodged 31 May 2019, pp 377–379.
The appellant stated that Firm Two then “kept my file” from 19 October 2016 till 22 November 2017. She said the relevant lawyer from the firm “was no help for me he just wasted my time”.[41] This period was about one year. The available material relevant to delay demonstrates that Firm Two furnished a general letter of advice to the appellant on 19 October 2016. It correctly advised that the Commission could extend time, but an application for such an extension would be required. It said a brief to a barrister would be prepared.[42] The material includes a letter from the Registrar to the solicitors. That letter refers to a letter from Firm Two dated 6 March 2017, which purports “to restore appeal proceedings” in respect of the original Application to Appeal which was lodged on 11 November 2014, and ultimately rejected (see [44] above).[43]
[41] Time statement, [17].
[42] Amended Application to Appeal lodged 31 May 2019, pp 411–412.
[43] Amended Application to Appeal lodged 31 May 2019, p 414.
The appellant stated that in 2017 she saw Firm Three, and a lawyer there “kept my file from 22nd November 2017 till 30th May 2018” (a little over six months). She said he was “no help for me he just wasted my time”.[44] The material includes a copy letter from Firm Three to the respondent’s insurer, Employer’s Mutual Limited, dated 22 November 2017.[45] The letter includes an Authority to Act, and seeks copies of documents such as medical reports, investigation reports, Commission documents, an up-to-date list of payments, claim forms and notices disputing liability. There is a letter from Firm Three to the appellant dated 30 May 2018.[46] It refers to having “reviewed the documents in the file”. The documents discussed in the letter were the arbitral decision and the insurer’s denial of liability dated 5 July 2016 (that is, after the arbitral decision). The letter discussed the arbitral decision, and expressed the view that a Presidential appeal would not have changed the decision. It said there were not reasonable prospects of success of pursuing a claim for primary psychological injury. It recommended that the appellant seek an opinion from another lawyer, and said her file was “ready to pick up when you are ready”. This document was referred to in the respondent’s submissions.[47]
[44] Time statement, [18].
[45] Application to Appeal lodged 31 May 2019, pp 436–437.
[46] Application to Appeal lodged 31 May 2019, pp 438–439.
[47] Respondent’s submissions, [14].
The evidence does not indicate that the appellant was legally represented from 30 May 2018 to 10 May 2019, when the current appeal was instituted. The time statement, after referring to the involvement of Firm Three, stated the appellant had “been to the Supreme Court of NSW since I have no help from any lawyers”, and “I have spoken to Registrar at the Supreme Court of NSW if can lodge my case at Supreme Court for justice”. The appellant said “I have decided before I take my case to any other court I better try an appeal for time out ground if I can get justice at Workers Compensation Commission.”[48]
[48] Time statement, [19]–[21].
The delay from 13 October 2014 (the date of the arbitral decision) to 19 December 2014 (the last conversation with the Presidential Unit Manager) is adequately explained. This leaves a period from about December 2014 to 30 May 2018, about three and a half years, when the appellant was represented by three different firms of solicitors. This period is largely unexplained. Two medical reports were obtained. There was a misconceived application to restore the original appeal proceedings which were no longer on foot. One of the firms requested material from the insurer, and formed the view the proceedings did not have reasonable prospects of success. This amounts to some explanation of the delay over this period but it is not, in my view, adequate. There is little explanation of what instructions the appellant gave, or of what (if anything) she did to have her solicitors progress the matter. There is no meaningful evidence about what contact the solicitors had with the appellant, and why.
This then leaves the period from 30 May 2018 to 10 May 2019, about one year, when the appellant was unrepresented. The only explanation of delay over that time is the appellant’s statement that she saw the Registrar of the Supreme Court of NSW, to see if she could lodge her case in that jurisdiction.
Viewing the lengthy period of delay in its entirety, it is in no way adequately explained. There is little explanation at all of the last year.
An arguable case
Grounds Nos. 1, 5, 6, 11, 12, 13 and 14
Whether there is an arguable case depends on a consideration of the grounds. The appellant relies on 14 grounds. Grounds Nos. 1, 5, 6, 11, 12, 13 and 14 relate to how the Arbitrator dealt with the medical evidence. The issues raised go to the Arbitrator’s treatment of:
(a) the independence of the appellant’s physical injuries from her psychological injury, which was allegedly due to bullying and harassment at work (Ground No. 1);
(b) Dr Hanif’s clinical notes, and her report dated 28 March 2013[49] (Grounds Nos. 5 and 11);
(c) Dr Lam’s report dated 11 December 2008[50] (Ground Nos. 6 and 12);
(d) Dr Birman’s (sic, Burman’s) report dated 13 August 2010[51] (Ground No. 13), and
(e) the opinion evidence of Dr Sringeri and Dr Gertler (Ground No. 14)
[49] ARD, pp 286–287.
[50] ARD, pp 201–202.
[51] ARD, pp 217–229.
The Arbitrator relied on the opinion of Dr Hanif, which he took from her clinical notes of 8 and 11 July 2008, to support his finding that the appellant’s psychological injury resulted from the orthopaedic injury suffered on 5 November 2007, rather than from the alleged bullying and harassment (see [6]–[7] above). The appellant submits that the Arbitrator failed to place any weight on Dr Hanif’s report dated 28 March 2013. That report described the appellant attending the doctor’s surgery on 12 March 2013, following a meeting that day at work, which involved the appellant’s supervisor, Ms Espiritu. It said the appellant “now had a second workers compensation claim due to ongoing ‘bullying and harassment at work’.” It also included the passage:
“It is not [sic] more than four years since I last saw [the appellant] and I am unaware of her current well-being. In my opinion [the appellant’s] injury was related to her work, which continued to deteriorate, she developed ‘Complex Regional Pain Syndrome’ and to top it all off she started suffering a psychological injury as a result of harassment and bullying at work on a constant basis.”[52]
[52] ARD, p 287.
In Hancock v East Coast Timber Products Pty Ltd Beazley JA (as her Honour then was, Giles and Tobias JJA agreeing) said:
“A deficiency in one part of an expert’s evidence may be made good by other material, either in another report or in oral evidence: see the discussion in Rhoden v Wingate at [55]-[73] … The question as to whether there was a scientific or intellectual basis for Dr Summersell’s opinion had to be determined by reference to all of his reports. It was not a determination that could be made by singling out an isolated part from the whole of that witness’s material before the Commission.”[53]
[53] [2011] NSWCA 11; 8 DDCR 399, [92].
The material before the Commission from Dr Hanif included both her report dated 28 March 2013, and her clinical notes. A proper consideration of Dr Hanif’s opinion on the causation issue could not be appropriately undertaken on the basis of passages in the clinical notes, without reference to the opinion expressed in her report. The doctor’s opinion, as expressed in her report, was contrary to the Arbitrator’s interpretation of the doctor’s opinion based on the clinical notes. There is also merit in the appellant’s argument that the reading placed by the Arbitrator, on Dr Hanif’s clinical notes, was not properly open on a fair reading.[54] The way in which the Arbitrator dealt with the views of Dr Hanif involved error.
[54] Appellant’s submissions, [37]–[41].
There was support, for the proposition that the appellant suffered a primary psychological injury, in the reports of Dr Sringeri, the treating psychiatrist. In his report dated 29 April 2013,[55] Dr Sringeri gave the following diagnosis:
“Post Traumatic Stress Disorder (PTSD)
Major Depressive Disorder (MDD) – Severe
With Melancholic and anxiety symptoms
Chronic pain”.
[55] ARD, pp 288–292.
The doctor recorded a history of harassment and abuse at work in 2008. Asked to comment on the relationship between the accident and the injury sustained, the doctor replied:
“Mrs Naidu has no prior history of mental illness. In my opinion PTSD and MDD caused by work place trauma of suffering bullying and harassment.”
And also:
“In my opinion work place trauma of suffering bullying and harassment were substantial contributing factor[s] for current psychiatric illness (MDD and PTSD).”
In a report dated 4 September 2014, Dr Sringeri said:
“In my opinion [the appellant] has been suffering from an independent psychiatric illness related [to] work place bullying and harassment, which is independent of chronic pain.”[56]
[56] AALD 9/9/14, p 3.
Dr Gertler, psychiatrist, was qualified by the appellant’s former solicitors, and reported on 27 May 2013.[57] He recorded a history of “harassment and bullying”, including various specific events. Dr Gertler said: “In my opinion Ms Naidu suffers from a chronic adjustment disorder with anxious and depressed mood. The level of depression is that of a major depression.” Dr Gertler thought the case did not satisfy the criteria for a diagnosis of Post Traumatic Stress Disorder, as “there was no threat to her physical integrity”. He said the diagnosed condition: “… developed on the basis of the harassment and bullying to which she was allegedly subjected at her place of work in 2007/2008”.
[57] ARD, pp 1–7.
The only reference to the opinion of Dr Sringeri in the Arbitrator’s reasons was at [6], where an application to cross-examine the appellant was refused, on the basis there was a very high chance of this increasing her symptoms, such that she would not be able to give reliable evidence. The only reference to Dr Gertler’s report was in the reasons at [40] to [41]. The Arbitrator there compared the appellant’s description of her mental state, in her statement and her history to Dr Gertler, with her appearance on her Facebook account and when observed by investigators in May 2014.
The appellant submits that the Arbitrator did not reject the evidence of Dr Sringeri or Dr Gertler, and submits in those circumstances the Arbitrator erred in not dealing with the opinions of those doctors.[58] The appellant’s submissions on this point are correct. In Beale v Government Insurance Office of NSW Meagher JA said:
“No mechanical formula can be given in determining what reasons are required. However, there are three fundamental elements of a statement of reasons, which it is useful to consider. First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it. Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to.”[59] (references omitted)
[58] Appellant’s submissions, [50]–[55].
[59] (1997) 48 NSWLR 430, 443. See also Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402; 79 ALJR 1816, per Hayne J, [129]–[130].
There was passing reference in the reasons to the reports of Dr Sringeri and Dr Gertler, but not to the opinion of those doctors relevant to the central issue of whether the appellant had suffered a ‘primary’ or ‘secondary’ psychological injury. That opinion evidence was contrary to the Arbitrator’s conclusion that the psychological injury was secondary. It was necessary that the Arbitrator deal with this opinion evidence, and he failed to do so. This involved error.
The appellant submits, in respect of Ground No. 13, that there was similar error in the failure of the Arbitrator to refer to the evidence of Dr Burman, a psychiatrist.[60] I cannot see that the report of Dr Burman was before the Arbitrator. I cannot identify reference to it in the ARD, the Reply, or any of the Applications to Admit Late Documents. Counsel did not address on it before the Arbitrator. It was included in the material attached to the Application to Appeal lodged by the appellant on 10 May 2019, and was referred to in the chronology in that document as “Not submitted Important report”.[61] The Arbitrator could not err in failing to consider it if it was not before him.
Grounds Nos. 3 and 4
[60] Appellant’s submissions, [47]–[49].
[61] Application to Appeal lodged 10 May 2019, p 7.
The Arbitrator made an adverse credit finding based on the Facebook and surveillance material.[62] In Grounds Nos. 3 and 4 the appellant raises issues going to whether this finding involved error.
[62] Reasons, [39]–[42].
In Ground No. 3, the appellant submits the Arbitrator failed to take account of the evidence of Dinesh Kumar, the appellant’s brother, that he set up the Facebook account.[63] The significance the appellant seeks to draw from this ground, in submissions, goes more to how typical the Facebook material was of the appellant’s mood and activities, rather than to the fact that Mr Kumar set up the account. The submissions quote from Mr Kumar’s statement dated 9 July 2014, the thrust of which can be gleaned from the following extract:
“The photographs definitely do not depict her ordinary everyday life, but as can be expected, the photographs are carefully chosen only to depict positive moments. They therefore do not represent a true picture of her condition.”[64]
[63] Dinesh Kumar statement 9/7/14, AALD 12/8/14 (Kumar statement), pp 5–7.
[64] Kumar statement, [11].
In Ground No. 4, the appellant says she was denied procedural fairness. She submits she was not given the opportunity to respond to an allegation that her statement was untruthful. She submits she did not have the opportunity to address, orally or in writing, Ms Espiritu’s denial about the assault allegation or the allegation about the Facebook account.
The Arbitrator concluded the Facebook page was inconsistent with the appellant’s statement and also her presentation to Dr Gertler. The appellant submits the Arbitrator assumed the role of a medical assessor. It submits the Arbitrator’s finding about the truthfulness of the appellant’s statement was based on speculation and not supported by evidence.[65]
[65] Appellant’s submissions, [13]–[16].
The submission that the appellant was denied procedural fairness is without merit. The Facebook material and surveillance report were lodged under cover of an Application to Admit Late Documents on 4 July 2014. That document certified that it was served on the appellant’s solicitors on 2 July 2014. On 12 August 2014, the appellant lodged and served an Application to Admit Late Documents, the attachments to which included the statements of the appellant and her brother, Dinesh Kumar, both dated 8 July 2014. Those statements directly addressed both the Facebook material and the surveillance.
At the commencement of the arbitration hearing the Arbitrator noted there was an application to cross-examine the appellant. The appellant was represented by Mr Young of counsel on an earlier listing of the arbitration, and by Mr Lucas on 26 September 2014. The Arbitrator referred to “observations made by both Mr Young on the last occasion and Mr Lucas on this occasion”, and said it was “inappropriate and might be injurious to the [appellant’s] health for that [cross-examination] to occur”.[66] I infer the unsuccessful application to cross-examine was made by the respondent. There is no suggestion, in the transcript, that the appellant sought leave to give oral evidence to further address the Facebook material and surveillance.
[66] Transcript of Proceedings (T), 26 September 2014 T1.32–35.
In the running of the arbitration the respondent’s counsel specifically addressed on the Facebook material and the surveillance, in a manner which made it clear that he was attacking the appellant’s credit.[67] The appellant’s counsel, at the arbitration hearing, specifically dealt with the Facebook material and the surveillance, and the issue of the appellant’s credit.[68] There is no suggestion the Arbitrator restricted the opportunity for either party to make submissions. The appellant also had a clear opportunity to address the factual conflict between her evidence and that of Ms Espiritu.[69]
[67] T 29.12–38.9.
[68] T 53.31–55.30.
[69] T 43.12–48.20.
Whilst the Arbitrator did not specifically refer to Mr Kumar’s statement, he referred to evidence from the appellant to similar effect. He noted the appellant “alleges that her brother created her Facebook account”, and that the outing to Canberra depicted in the Facebook photographs resulted from family encouragement, that the appellant said she felt uncomfortable, and that she had difficulty coping.[70] The Arbitrator noted that Dr Synnott (a psychiatrist qualified by the respondent) was given the Facebook and surveillance material, and was not prepared to alter his previous view without a further consultation to discuss the material with her.[71] The Arbitrator referred to the appellant’s demeanour in both the Facebook images and the surveillance material, and said it was completely contrary to the appellant’s depiction of her day to day life in her statement and histories to doctors. The Arbitrator described the appellant’s explanation, that the observation material did “not represent a normal day”, as “not believable”.[72]
[70] Reasons, [39]
[71] Reasons, [47]
[72] Reasons, [41].
The appellant submits the Arbitrator’s views about the Facebook material and surveillance involved him speculating and “assuming the role of a medical assessor” (see [69] above). The respondent’s counsel addressed the Arbitrator about the Facebook and surveillance material. He clearly relied on a submission that her presentation in such circumstances was inconsistent with her statement and histories to doctors.[73] The respondent relied on a report of Dr Synnott, psychiatrist, dated 9 July 2014,[74] which commented on the Facebook and surveillance material. The report referred to the material being “somewhat at odds – with her description of the limited lifestyle and how she rarely gets out except to go to local destinations”. It said the material raised “some questions about the exact accuracy and veracity of what she described to me at the consultation”. The doctor said he would not consider changing his assessed level of impairment without another consultation, to see if the appellant “had any explanation for it”.
[73] T 31.19–32.27.
[74] AALD 17/7/14, pp 19–20.
The appellant’s counsel accepted that the respondent’s assertion was to the effect that the appellant was not “a person of credit”.[75] The appellant made submissions dealing with the significance (or lack of it) of the Facebook and surveillance material. The thrust of the appellant’s submissions on the topic was that the material was not inconsistent with the presence of a psychiatric illness.[76] The appellant’s counsel submitted the appellant had “answered all of the queries, if there are any, raised by the Facebook entries entirely appropriately and that the surveillance is for that ought to be no consequence in this case [sic] and nor is the Facebook entry”.[77] The appellant did not submit that to find inconsistency between the appellant’s medical histories and statement, compared with the Facebook material and surveillance, as a basis for an adverse credit finding, was unavailable as it would involve speculation or the Arbitrator “assuming the role of a medical assessor”. That argument not having been raised at first instance, the appellant should not be permitted to raise it on appeal.[78] To the extent to which the Arbitrator required medical support to find the presence of inconsistency, that support was available in any event in the last report of Dr Synnott, on which the respondent addressed (see the preceding paragraph).
[75] T 53.31–32.
[76] T 53.34–55.20.
[77] T 55.21–25.
[78] Metwally v University of Wollongong [1985] HCA 28; 60 ALR 68; 59 ALJR 481, [7], Coulton v Holcombe [1986] HCA 33; 162 CLR 1, [15].
It follows that the arguments raised in Grounds Nos. 3 and 4 could not succeed.
Grounds Nos 2, 7 and 10
The way in which the Arbitrator dealt with fact finding in the current matter was a little unusual. He made a finding that the appellant’s psychological injury was ‘secondary’. He did this on a conditional basis, “[i]f the [appellant] sustained a psychological injury arising out of or in the course of her employment…”.[79] He made a finding that any psychological injury was ‘secondary’, without actually making a finding of ‘psychological injury’. This was in circumstances where there was a contest between the appellant and Ms Espiritu, regarding whether the appellant’s factual allegations should be accepted. It was in circumstances where the Arbitrator had concluded that he would not accept the evidence of the appellant unless it was independently corroborated. It was in circumstances where “in respect of the various incidents which the [appellant] alleges had occurred between herself and Sol Espiritu”, the Arbitrator accepted “Ms Espiritu’s version of these events”.[80]
[79] Reasons, [52].
[80] Reasons, [42].
The way in which the Arbitrator approached the ‘injury’ issue probably resulted from how the respondent disputed the claim. The s 74 notice dated 19 September 2013 disputed whether the appellant had suffered a ‘primary psychological injury’, it did not dispute that a psychological injury had occurred.[81] The Reply lodged by the respondent confirmed the issues as being those raised in the dispute notice.[82] The appellant’s counsel, at the arbitration hearing, raised the fact that the s 74 notice did not dispute that the appellant had suffered a psychological injury. The Arbitrator did not accept that submission, on the basis that the s 74 notice disputed a diagnosis of Post-Traumatic Stress Disorder.[83]
[81] ARD, pp 504–507.
[82] Reply, p 3.
[83] T 2.11–3.17.
Whether the appellant suffered from a ‘primary psychological injury’ was not purely a medical issue. The appellant’s submissions before the Arbitrator dealt at some length with alleged events at work that were potentially causative of psychological injury, and medical histories that were associated with such events.[84] The balance of the grounds of appeal deal, in a general sense, with the issue of ‘injury’, more particularly whether the lay and medical evidence supported the occurrence of a ‘primary psychological injury’.
[84] See for example T 43.12–47.10.
The Arbitrator found that he could not accept the evidence of the appellant unless it was independently corroborated.[85] Grounds Nos. 2, 7 and 10 seek to identify aspects of the evidence where the appellant was allegedly corroborated, such that her evidence should have been accepted in any event.
[85] Reasons, [42].
The appellant refers to the alleged assault on 14 July 2008. Her submissions state that she reported the assault, by Ms Espiritu, to her work colleagues, the police, and in her claim form. She submits the assault was corroborated by Dr Hanif in the report dated 28 March 2013. The Arbitrator dealt with alleged corroboration in the reasons. The appellant stated that immediately after the assault she was sent to complete her shift in pathology and told one of her work colleagues in pathology.[86] The Arbitrator specifically noted that the appellant did not rely on a statement from that person.[87] The appellant described a formal meeting on 22 July 2008. She stated that, prior to that meeting, she had complained to various people “about the situation”. These were Dr Hanif, together with four named people from work.[88] The Arbitrator noted that no statements from these people were put into evidence.[89] Evidence from the appellant, that she mentioned these matters to named individuals, is not independent corroboration of what happened.
[86] Appellant’s statement 16/12/12, [72], ARD p 482.
[87] Reasons, [34].
[88] Appellant’s statement 16/12/12, [81], ARD p 484.
[89] Reasons, [34].
The appellant states that a claim form for depression was lodged on 1 August 2008.[90] The claim form stated that it was given to the employer by “Fax” on 1 August 2008. The signature on the document was dated 16 December 2008. In any event, the claim form does not corroborate the occurrence of the injury, or the events alleged to have given rise to the injury. It simply establishes that a claim form was lodged (on the appellant’s version of events) on 1 August 2008. It is evidence of what the appellant reported and when; it is not independent corroboration of what occurred.
[90] Appellant’s statement 16/12/12, [90], ARD p 485.
The material from NSW Police[91] records the appellant spoke to police on 15 July 2008, and gave a history of bullying when she returned to work on light duties following a leg injury. It records the appellant referred to an incident on 14 July 2008, when she was “sorting out blood vials” and “her boss” (whose name was redacted) grabbed her by the wrist causing discomfort, the appellant thought deliberately. Police enquiries led to the police giving the contact details and a report number to the appellant and directing her to “work place complaints” at the hospital. Again, this is evidence of the appellant reporting these matters, it is not independent corroboration of what occurred.
[91] ARD, pp 499–501.
The appellant refers to “Dr Nisha’s report of 14 July 2008”. I take this to be a reference to Dr Nisha Hanif, the appellant’s general practitioner. I cannot locate a medical report of Dr Hanif dated 14 July 2008 in the material. If it is a reference to 14 July 2008 in the doctor’s clinical material, the first entry in Dr Hanif’s records, following the alleged assault on 14 July 2008, was on 16 July 2008.[92] It recorded the appellant was “verbally abused and insulted and physically assaulted by supervisor at work”. It described a version generally consistent with the appellant’s evidence, that the supervisor Sol snatched forms from the appellant’s hands and pulled her around hanging on to her right wrist.
[92] ARD, p 85.
The various complaints by the appellant relied on in this ground, although they are relatively contemporaneous, remain complaints that are dependent on acceptance of the appellant’s reliability to establish that the events occurred. They do not involve independent corroboration, the term used by the Arbitrator in his credit finding. Earlier versions of events given by the appellant, if the appellant’s evidence is not acceptable having regard to the Arbitrator’s credit finding, do not establish the occurrence of the events.
The appellant relies, in her submissions, on the description of the incident of 12 March 2008 recorded in Dr Hanif’s report dated 28 March 2013 (misdescribed as 2018). The report describes the appellant attending the doctor on the same day the meeting with Ms Espiritu and Ms Lynch (a rehabilitation co-ordinator) occurred. She was brought in by her husband and “broke down, inconsolably crying”. She was anxious, had low mood, could not concentrate, had chest pain and shortness of breath.
The appellant’s submissions dealing with Ground No. 7 essentially raise the same point again. The appellant refers to Dr Hanif’s report and the symptoms described. The appellant submits there is no suggestion these symptoms were feigned, so it is unchallenged evidence suggesting a psychological condition.[93] To the contrary, the Arbitrator, in the reasons, did raise the possibility that symptoms were feigned. He referred to the disparity between the Facebook material and the surveillance, compared with the histories to doctors and the appellant’s statement, and his view that the appellant’s explanation of the difference between these was “totally inadequate”. He said:
“It raises the question whether the [appellant’s] complaints of psychological symptoms have been exaggerations or falsehoods from their very inception.”[94]
[93] Appellant’s submissions, [29]–[30].
[94] Reasons, [48].
The Arbitrator did not answer this question in specific terms. The above passage makes it clear how deeply the appellant’s credibility had been damaged, in the Arbitrator’s view, by the Facebook material and the surveillance. The passage demonstrates that the Arbitrator, as a result of his credit finding, did not accept the genuineness of the appellant’s complaints of psychological symptoms, at any stage of the alleged illness. In those circumstances, the arguments advanced in respect of Grounds Nos. 2, 7 and 10 would not succeed.
Ground No. 8
Ground No. 8 relates to the Arbitrator’s fact finding in the reasons at [16] to [19] (see [5] above). The appellant says that the Arbitrator erroneously concluded, because the meeting of 11 March 2008 was not referred to in the appellant’s statement, that it was not of significance. The appellant submits this “influenced the Arbitrator’s decision” to reject the allegation of primary psychological injury. It submits there was no reason for concluding that the appellant’s symptoms, when she saw Dr Hanif on 12 March 2008, were “other than as a result of events at work”. It is submitted the Arbitrator should have considered whether the appellant had “a genuine perception” that the behaviour of her superior officers, especially Ms Espiritu, was “oppressive and bullying”, causing the symptoms observed by Dr Hanif.
The Arbitrator’s point was a simple one. The appellant saw Dr Hanif on 12 March 2008 complaining of multiple psychological symptoms. Dr Hanif recorded there was a meeting (whether on 11 or 12 March 2008 is probably not crucial) involving the appellant, Ms Espiritu and Ms Lynch, the rehabilitation co-ordinator. If events around that time were said to be causative of the psychological symptoms, one would expect some evidence from the appellant of those events. The appellant’s statement was silent regarding whether there was such a meeting, and if so, what happened. The entry in Dr Hanif’s records did not fill this lacuna. The doctor on that day simply recorded that there was a meeting and noted the appellant’s distress and symptoms.[95] The appellant’s submission that there was no reason to conclude the symptoms were other than a result of events at work tends to invert the onus. The appellant carried the onus of establishing there was a primary psychological injury, which was disputed. The Arbitrator’s remarking on this deficiency in the appellant’s case was available.
Ground No. 9
[95] ARD, p 90.
This ground refers to the authority of State Transit Authority of New South Wales v Chemler,[96] and also the decision of Attorney General’s Department v K,[97] in which Roche DP discussed Chemler and other authorities relating to proof of psychological injuries. Basten JA in Chemler said:
“Nor is it necessary to determine whether the Respondent’s response was a misperception as to the intention or attitudes of his fellow workers. In contrast to discrimination law, the proper focus in this context is the consequence of conduct on the claimant and not, even in a limited sense, the motivation, intention or other mental state of the co-worker or supervisor: cf Purvis v New State Wales (Department of Education and Training) [2003] HCA 62; (2003) 217 CLR 92 at [166] (McHugh and Kirby JJ); and [234]-[236] (Gummow, Hayne and Heydon JJ). If conduct which actually occurred in the workplace was perceived as creating an offensive or hostile working environment, and a cognizable injury followed, it was open to the Commission to conclude that causation was established.”[98]
[96] [2007] NSWCA 249; 5 DDCR 286 (Chemler).
[97] [2010] NSWWCCPD 76; 8 DDCR 120 (K).
[98] Chemler, [69].
The appellant, presenting her case before the Arbitrator, relied on Chemler.[99] Her counsel noted the appellant alleged an assault on 14 July 2008, when Ms Espiritu grabbed forms from her, grabbed her right hand and spun her around. This was the incident that led to the report to police.[100] Her counsel noted that Ms Espiritu accepted that an incident occurred when she wanted the appellant to bring tubes closer, but denied placing her hands on the appellant. The appellant submitted these were real events, and there was an interaction between the appellant and Ms Espiritu regarding “an issue with the tubes”. The appellant submitted that, even if Ms Espiritu’s version of the event was accepted, the appellant’s perception of the exchange was sufficient to constitute ‘injury’ applying the principles in Chemler.
[99] T 51.31–53.20.
[100] Appellant’s statement 16/12/12, [69]–[74], ARD p 482.
On appeal, the appellant submits the Arbitrator did not indicate he had considered the principles in Chemler.[101] The respondent submits the appellant’s evidence was rejected, and accordingly evidence of her perceptions was irrelevant. It submits the result should be confirmed for other reasons.[102]
[101] Appellant’s submissions, [34]–[35].
[102] Respondent’s further submissions, [12]–[16].
For reasons discussed above, whether the appellant suffered a ‘psychological injury’ was not the issue. What was in issue was whether the appellant suffered a ‘primary psychological injury’. The Arbitrator’s credit finding was that he would only accept the appellant’s evidence if independently corroborated. An independent witness could independently corroborate something that happened. An independent witness could not corroborate something that the appellant allegedly perceived to have happened. On reflection, the respondent’s submission on this point is correct. It having been raised in the appellant’s submissions before the Arbitrator, and potentially being relevant to the case the appellant presented, the Arbitrator should have referred to the argument based on Chemler. However, given the credit finding, that argument would not succeed. The appellant’s perception of events was not something that could be independently corroborated.
It follows that the various arguments raised by the appellant dealing with ‘injury’ would not have succeeded.
The presence of ‘exceptional circumstances’
A Presidential member, dealing with an application to extend time pursuant to r 16.2(5), is required to consider the presence of ‘exceptional circumstances’.
In Bryce v Department of Corrective Services Allsop P (as his Honour then was), dealing with what is now r 16.2(5) of the Rules, said:
“In my view, the phrase ‘in exceptional circumstances’ finding its place in the middle of the rule is to be dealt with as a matter to be considered by the Presidential member as a matter within jurisdiction as opposed to a precondition to the operation of jurisdiction.”[103]
And:
“Whether or not there are exceptional circumstances and whether in those circumstances it is shown to the satisfaction of the Deputy President that demonstrable or substantial injustice would occur if leave were not granted is a composite expression in the rule to be dealt with within jurisdiction, and all of the matters identified by the Deputy President in [23] can be seen as relevant to the consideration of that composite expression.”[104]
[103] [2009] NSWCA 188 (per Allsop P, Beazley and Giles JJA agreeing) (Bryce), [8].
[104] Bryce, [10].
Campbell JA, in Yacoub v Pilkington (Australia) Ltd,[105] dealt with the phrase “exceptional circumstances”, in the context of r 31.18(4) of the Uniform Civil Procedure Rules 2005. His Honour said:
“(a) Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered: R v Kelly (Edward) [1999] UKHL 4; [2000] 1 QB 198 (at 208).
(b) Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factors: R v Buckland [2000] EWCA Crim 1; [2000] 1 WLR 1262; [2000] 1 All ER 907 (at 1268; 912–913).
(c) Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No 295 [2007] FCA 388 (at [26]).
(d) In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provision: R v Buckland (at 1268; 912–913).
(e) Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case: Awa v Independent News Auckland [1996] 2 NZLR 184 (at 186).”
[105] [2007] NSWCA 290 (Yacoub), [66].
Campbell JA in Yacoub said that in deciding whether ‘exceptional circumstances’ were present, it was necessary to bear in mind the statement of objectives in ss 56–59 of the Civil Procedure Act 2005. I have held that where the phrase appeared in r 16.2(12) of the Commission’s Rules (the precursor to r 16.2(5)), it was appropriate to consider the phrase in the context of the ‘System objectives’ and ‘Procedure before the Commission’, described in ss 3 and 354 respectively, of the 1998 Act.[106]
[106] Vaughan v Secretary, Department of Education [2018] NSWWCCPD 1, [23].
In Webb v Penrith Rugby Leagues Club Ltd[107] Keating P said:
“On several occasions, the Commission has held that inadvertence or administrative errors by legal practitioners do not amount to exceptional circumstances that justify an extension of time to appeal (Department of Education and Training v Mekhail [2006] NSWWCCPD 1 and Department of Corrective Services v Buxton [2007] NSWWCCPD 55).”[108]
[107] [2016] NSWWCCPD 16 (Webb).
[108] Webb, [24].
The appellant submits that ‘exceptional circumstances’ are present, without going into any detail about what factors allegedly support that submission.
The events leading up to lodgement of the current appeal proceedings are set out at [43] to [52] above. The original appeal was lodged within time, on 11 November 2014. The appellant was given until 24 November 2014, to lodge an Amended Application to Appeal, that was compliant with Practice Direction No 6.[109] The Amended Application to Appeal lodged by the appellant on 24 November 2014 failed to rectify the non-compliance with Practice Direction No 6. The Registrar, by letter dated 27 November 2014, advised the appellant’s then solicitors that the appeal was rejected and the file was closed.[110] Those appeal proceedings were, at that point, concluded. Those circumstances were not ‘exceptional’, they were circumstances that were relatively commonplace, regularly or routinely encountered.
[109] Registrar’s Direction 13/11/14, attachment to Direction 6/11/19.
[110] Registrar’s letter 27/11/14, attachment to Direction 6/11/19.
The file notes of the Presidential Unit Manager indicate that she spoke by telephone to the appellant and her cousin on 8 December 2014 and 19 December 2014. She explained what had happened. The Presidential Unit Manager informed the appellant that if she wished she could lodge an appeal, with submissions dealing with why leave should be granted to do so out of time. She told the appellant she should seek legal advice, either from her existing solicitor or someone else.[111] The furnishing of basic procedural advice by staff from the Presidential Unit is something regularly or routinely encountered. It does not constitute ‘exceptional circumstances’.
[111] File notes of Ms Camp, 8 & 19/12/14, attachments to Direction 6/11/19.
The matter was then in the hands of three firms of solicitors until 30 May 2018. This period is described at [47] to [49] above. None of the firms, from the limited material available, took steps to lodge a fresh Application to Appeal the arbitral decision, with appropriate submissions on an extension of time. The appeal initially became out of time because, as originally lodged, it failed to comply with Practice Direction No 6, and this was not rectified when an Amended Appeal was lodged on 24 November 2014. The procedural matters that required rectification were spelled out in the Direction dated 13 November 2014. The need to lodge an appeal with submissions on the extension of time, if the appellant wished to bring an appeal, was discussed with the appellant by the Presidential Unit Manager on 8 and 19 December 2014. The reason why Firm Three did not take this step is apparent. It concluded there were not reasonable prospects of an appeal succeeding. The reasons why Firms One and Two did not take such steps at an earlier stage, while they held instructions, is unknown. The limited evidence put on by the appellant, on this topic, does not deal with what instructions she gave, or in any meaningful way with what communications passed between her and her solicitors from time to time. There is virtually no explanation of what happened from when Firm Three ceased to act (30 May 2018) to 10 May 2019 when the appellant commenced the current appeal. The only explanation is that the appellant spoke to the Registrar of the Supreme Court at an undisclosed time to see if she could lodge her case there.
The appellant carries the onus on the extension of time application, which includes the issue of ‘exceptional circumstances’. The evidence dealing with the very lengthy period during which the matter is out of time, whether the events are viewed individually or in combination, does not establish the existence of ‘exceptional circumstances’.
Other matters described in Gallo v Dawson
The history of the proceedings, the conduct of the parties and the nature of the litigation do not much assist the appellant. The Arbitrator having entered an award for the respondent, the appellant described attempts in the initial weeks thereafter, to obtain legal advice to consider an appeal. This resulted in her instructing Firm One on 4 November 2014, about three weeks after the arbitral decision.[112] The chronology thereafter is set out above. The appellant remained pro-active in seeking to pursue her appeal rights, contacting the Presidential Unit Manager to discuss the situation on 8 and 19 December 2014. The sequence of events thereafter largely involved the effluxion of lengthy periods of time with little, on the evidence, occurring to advance the matter. The respondent does not assert prejudice. There is no indication that the respondent did anything to hinder the appellant or to act in a way that was obstructive. The consequence to the appellant, if her application to extend time fails, is that she will not be able to bring the appeal. The respondent has a vested right to retain the award in its favour, unless the application to extend time is granted.
[112] Time statement, [5]–[9].
Conclusion
In Brisbane South Regional Health Authority v Taylor McHugh J said:
“The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.”[113]
[113] [1996] HCA 25; 186 CLR 541; 139 ALR 1; 70 ALJR 866 (Brisbane South), 553–554.
In Itek Graphix Pty Limited v Elliott[114] Ipp AJA reviewed a number of the authorities relevant to the extension of limitation periods. That case involved an application for the extension of time to initiate proceedings pursuant to s 151D(2) of the 1987 Act, described by Ipp AJA as “a broad discretion”.[115] Referring to the decision in Brisbane South, Ipp AJA (Spigelman CJ and Sheller JA agreeing) said:
“Accordingly, Dawson, McHugh and Kirby JJ in Brisbane South Regional Health Authority were all of the view that, generally, in a limitation statute, broad considerations of justice govern the grant of leave to bring proceedings after the limitation period has expired. These considerations include an examination of the conduct of the applicant for leave and the reasonableness of the explanation for the delay.”[116]
[114] [2001] NSWCA 442; 54 NSWLR 207 (Itek Graphix).
[115] Itek Graphix, [65], see also at [72].
[116] Itek Graphix, [85].
In Gallo v Dawson McHugh J, dealing with an application to extend time in which to bring an appeal, said:
“The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v. National Trustees Executors and Agency Co. of Australasia Ltd. [1978] VicRp 27; (1978) VR 257, at p 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant.”[117]
In
“It is always a question bearing upon the exercise of discretion in a claim for extension of time: Salido v Nominal Defendant (1993) 32 NSWLR 524 at 533, 539 and 541; Holt v Wynter (2000) 49 NSWLR 128 at 136. That is because it goes to the question of whether it is just and fair to grant the indulgence sought, namely an extension of time …”.[118]
[117] Gallo v Dawson, [2].
[118] [2004] NSWCA 106, [16].
In Salido v Nominal Defendant Gleeson CJ (as his Honour then was) said (in the context of an application under the Motor Accidents Act 1988):
“The diligence, or lack of diligence, shown by a plaintiff or a plaintiff’s representatives, in ascertaining and asserting his or her rights will ordinarily be a material factor, as will the extent of the relevant delay, and the reason for it.”[119]
[119] (1993) 32 NSWLR 524, 532G.
I have concluded, at [54] to [64] above, that the Arbitrator erred in how he dealt with the evidence of Dr Hanif, and in his failure to deal with the opinions of Dr Sringeri and Dr Gertler. I have concluded, at [66] to [95] above, that the grounds of appeal challenging various findings made by the Arbitrator, dealing with the Facebook and surveillance evidence, credit, and the nature of the appellant’s psychological injury, would not succeed. The issue of whether the appellant suffered a ‘primary psychological injury’, as alleged, depended on both the lay and the medical evidence. It is difficult to see how the appellant can succeed on the issue overall, given the Arbitrator’s credit finding, and his resultant preference for the evidence of Ms Espiritu over that of the appellant. Ms Espiritu, in her statement dated 12 August 2008, disputed the appellant’s allegations about her behaviour, describing them as “untrue and lies”.[120] The appellant’s evidence of mistreatment at work, to which she attributed her ‘primary psychological injury’, was essentially based on her allegations about Ms Espiritu. The appeal is not fairly arguable.
[120] Soledad Espiritu statement 12/8/08, ARD pp 611–618.
In Leichhardt Municipal Council v Seatainer Terminals Pty Ltd Moffitt P said:
“... it is not sufficient to show that some error of law appears in the judgment or during the course of the trial. The error has to be one upon which the decision depends, so the decision is vitiated by the error ... It will not suffice to establish that one or some only of a number of alternate findings upon which the decision was given involved errors of law, if one alternative involved no error of law.”[121]
[121] (1981) 48 LGRA 409, 419, quoted and applied in Trazivuk v Motor Accidents Authority of New South Wales [2010] NSWCA 287 (per Handley JA, Young JA agreeing), [110]. See also Gerlach v Clifton Bricks Pty Ltd [2002] HCA 22; 209 CLR 478; 76 ALJR 828, [7].
The appeal is not fairly arguable.
The appeal is a long way out of time, a period of approximately four and a half years. For reasons given above, the extensive period of delay is not adequately explained. I am not satisfied that ‘exceptional circumstances’ are present. I am not satisfied that the appeal is fairly arguable. The various relevant factors do not support the extension of time. The lack of forensic diligence, on the part of the appellant and two of the solicitors that she instructed, also militates against the extension of time. I am not satisfied that loss of the right to appeal would work demonstrable and substantial injustice to the appellant. The appropriate order is that the appellant’s application to extend time be refused.
DECISION
The Commission makes the following orders:
(a) Leave granted to the appellant to rely on its Further Amended Application to Appeal lodged on 16 September 2019.
(b) The application to extend time pursuant to r 16.2(5) of the Workers Compensation Commission Rules 2011 is refused.
Michael Snell
DEPUTY PRESIDENT
22 November 2019
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