Newitt v Combined Roofing Australia Pty Ltd - [2025] NSWPICPD 40

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Newitt v Combined Roofing Australia Pty Ltd [2025] NSWPICPD 40
APPELLANT:	Johnathon Geoffrey Newitt
RESPONDENT:	Combined Roofing Australia Pty Ltd
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-W3525/24
PRESIDENTIAL MEMBER:	President Judge Phillips
DATE OF APPEAL DECISION:	7 May 2025
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 13 August 2024 (wrongly dated 23 August 2023) is revoked. 2. The matter is remitted to be heard and determined by another member.
CATCHWORDS:	WORKERS COMPENSATION – adequacy of reasons – held that the Member failed to reveal reasoning – Rule 78 of the Personal Injury Commission Rules 2021 – denial of procedural fairness not established – Browne v Dunn (1893) 6 R 67 considered and applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Ms M Fraser, counsel
Friend & Co Lawyers
Respondent:
Mr F Doak, counsel
Bartier Perry Lawyers
DECISION UNDER APPEAL:	Newitt v Combined Roofing Australia Pty Ltd [2024] NSWPIC 433
MEMBER:	The Honourable L Drake
DATE OF MEMBER’S DECISION:	13 August 2024

INTRODUCTION AND BACKGROUND

Johnathon Geoffrey Newitt (the appellant) was employed by Combined Roofing Australia Pty Ltd (the respondent) between approximately August 2012 until March 2019 as an Operations Manager.[1]
[1] Application to Resolve a Dispute (ARD), p 6.
The appellant alleges that on 8 June 2018 he suffered an injury to his lower back consequential to lifting several 30kg box gutters from the ground onto a roof. The appellant consulted his GP and was diagnosed with a ruptured disc requiring him to have two days off work.[2] Due to fear of jeopardising his employment with the respondent, the appellant did not report the injury and did not lodge a workers compensation claim.[3] The appellant states he fully recovered from the injury approximately three to four months later.
[2] The Member and the appellant both state a period of two days off work was noted in the medical certificate. This appears to be an error as the certificate records a period of four days. This error is inconsequential to the appeal.
[3] ARD, pp 10–12.
The appellant states that he had no prior history of lumbar spine issues apart from a muscle spasm when he was fifteen (15) years of age. He recovered a few weeks after this incident after receiving physiotherapy treatment.[4]
[4] ARD, p 5.
The appellant alleges that on 4 July 2021, he suffered an “aggravation to lower back”[5] when he was getting up from a couch[6].[7]
[5] Pleaded in ARD form, p 6.
[6] ARD, p 14.
[7] It is noted there are differing histories recorded in the evidence as to how this incident occurred.
The appellant lodged a workers compensation claim form on the respondent in October 2021 for the 8 June 2018 injury.[8] The respondent subsequently issued several dispute notices pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) disputing liability on a number of factors, including that the injury or aggravation did not arise out of employment with the respondent and the appellant had failed to give notice of the injury and make a claim within the time as prescribed by ss 254 and 261 of the 1998 Act.[9]
[8] ARD, pp 38–45.
[9] ARD, pp 46–63.
The appellant commenced the current proceedings in the Personal Injury Commission (Commission) on 2 May 2024 which were heard by Member Drake who, in a Certificate of Determination dated 13 August 2024 (incorrectly recorded as 2023), determined that the appellant was injured on 8 June 2018 however that the injury had resolved by 19 June 2018 or shortly thereafter and any current incapacity for work was not causally related to the injury of 8 June 2018. Consequently, the Member entered an award in favour of the respondent.
It is from that decision the appellant now appeals.

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 (the 2020 Act) provides:
“(3) 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 and enabling legislation without holding any conference or formal hearing.”
Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions 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.

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

THE MEMBER’S REASONS

The Member recorded the salient aspects of the evidence and submissions before reaching her conclusion commencing at reasons [27]. This section is not long, and I set out the Member’s reasoning below:
“27. I am not persuaded that the 2021 incident, in which ever circumstances it occurred, was an aggravation of the 2018 injury.
28.    I am not persuaded that the [appellant’s] incapacity subsequent to the 2021 incident has any causal relationship with the 2018 injury.
29.    Whilst I am persuaded that the [appellant] did suffer an injury on 8 June 2018 I am satisfied and find that the 2018 injury resolved by 19 June 2018 or shortly thereafter.
30.    The [appellant] consulted Dr Qu on 12 June and 19 June 2018. He did not make mention of any work-related injury at either of these consultations. Whilst the [appellant] may have been wary of making a workers compensation claim in case it endangered his employment, there is no apparent explanation for his failing to mention a possible work-related causation to his general practitioner. Had he done so it would have more probably than not been noted.
…
32.    Dr Qu, the general practitioner who the [appellant] consulted on 12 June 2018 following the 2018 injury, noted that the [appellant’s] back pain had resolved. The [appellant] had no symptoms on 19 June 2018. There was a discussion regarding the findings of an MRI and possible nerve root impingement. There was no mention of a work injury.
…
34.    The [appellant] continued to occasionally see a doctor for back pain. Counsel for the [appellant] described the [appellant’s] medical regime following the 2018 injury as not being regular. It wasn’t. Nor were the consultation notes helpful in linking his back pain to the 2018 injury.
…
39.    I have given no weight to Dr Baker’s report. I consider that it is no more than a bare assertion of fact based solely on the [appellant’s] history.
40.    I have considered Dr Stephen’s report and taken into account his findings. I accept his conclusion that a vulnerability from the [appellant’s] injury as a young man remained with him. I consider that it is more probable than not that the early injury referred to in the [appellant’s] general practitioner consultations is the injury that he suffered when he was 15 years old.
41.    I make the following findings:
(a) on 8 June 2018 the [appellant] suffered an aggravation to an underlying back condition which arose from a back injury he suffered when he was 15 years old;
(b)that aggravation had ceased by 19 June 2018 or shortly thereafter;
(c)in the subsequent three years the [appellant] suffered flareups for which he consulted various general practitioners at extended intervals;
(d)those flareups did not cause him to cease work;
(e)in June 2021 the [appellant] suffered a major aggravation to his underlying back condition whilst at home which has incapacitated him for work; and
(f)the 2021 incident and the [appellant’s] resultant incapacity for work has no causal connection to the 2018 injury suffered by the [appellant] in the employ of the respondent.”
The Certificate of Determination issued on 13 August 2024 records:
“The Commission determines:
1.     The [appellant] was injured in the employ of the respondent on 8 June 2018.
2.     That injury resolved by 19 June 2018 or shortly thereafter.
3.     The [appellant’s] current incapacity for work is not causally related to the injury of 8 June 2018.
The Commission Orders:
1.     An award for the respondent.”

GROUNDS OF APPEAL

The appellant relies on the following two grounds of appeal:
Ground One -
(a) The Member, being under a duty to determine the application and give reasons for that determination, erred in law by failed [sic] to discharge the jurisdiction conferred on her by failing to;
(i)      give adequate reasons, and
(ii)     make sufficient findings of fact to support her decision.
(b) These legal errors led to material errors of fact, namely:
(i)      The appellant’s injury resolved by 19 June 2018 or shortly thereafter;
(ii)     The appellant’s incapacity after the 2021 incident had no causal relationship to the 2018 injury.
Ground Two - The Member denied the appellant procedural fairness by rejecting his unchallenged evidence in breach of the rule in Browne v Dunn.[10] This was an error of law.
[10] (1893) 6 R 67 (Browne v Dunn).
I add that in the original appeal grounds, the appellant had flagged a third appeal ground would be advanced once a transcript was available. No such third ground has been advanced.

LEGISLATION

Section 294(2) of the 1998 Act provides that “[a] brief statement is to be attached to the certificate setting out the Commission’s reasons for the determination.”
Rule 78 of the Personal Injury Commission Rules 2021 (the Rules) further requires that:
“(2) A determination of the appropriate decision-maker in applicable proceedings to which this rule applies is to be accompanied by a brief statement of the appropriate decision-maker’s reasons for the determination that includes the following—
(a) the appropriate decision-maker’s findings on material questions of fact, referring to the evidence or other material on which those findings were based,
(b) the appropriate decision-maker’s understanding of the applicable law,
(c) the reasoning processes that led the appropriate decision-maker to the conclusions made.
(3) Without limiting subrule (2), the reasons are to be stated sufficiently, in the opinion of the appropriate decision-maker, to make the parties to the proceedings aware of the appropriate decision-maker’s view of the case made by each party.”

SUBMISSIONS

Some principles about the obligation of a member of the Personal Injury Commission to give reasons

Given the manner in which Ground One has been advanced by the appellant, it is necessary to briefly set out the principles regarding the giving of reasons as they apply to the Commission.
The starting point is s 294(2) of the 1998 Act, which I have set out above. The obligation is to provide a brief statement of reasons. In broad terms, this obligation involves the decision maker engaging with the issues canvassed or raised by the parties. The nature of the duty is further explained in r 78 of the Rules. The rule requires the decision maker to address the three matters referred to in r 78(2). Rule 78(3) provides further direction as to how the reasons are to be stated sufficiently, namely that each party is made aware of the decision maker’s view of their case.
Arising from the following cases, it can be seen that a member’s requirement to give reasons and their review on appeal is guided by the following principles:
(a)    Compliance with the requirements of r 78 of the Rules.
(b)    The High Court in Wingfoot Australia Partners Pty Ltd v Kocak[11] stated that:
[11] [2013] HCA 43, [55].
“The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law”.
(c)    Reasons must be read as a whole.[12]
(d)    Administrative decisions, such as those made by tribunal members, ought not be minutely examined by “over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.”[13] After Wu Shan Liang, this matter was returned to by the Court in Roncevich v Repatriation Commission[14] where Kirby J said as follows:
“Upon this basis, it may be accepted (as the primary judge concluded in the Federal Court) that the reasons of the Tribunal were brief. However, that is not necessarily a flaw in the context of such a busy administrative tribunal. Courts conducting this form of review have been repeatedly enjoined by this Court to avoid overly pernickety examination of the reasons. The focus of attention is on the substance of the decision and whether it has addressed the ‘real issue’ presented by the contest between the parties.”
(e)    In NSW Police Force v Newby,[15] the then President of the Workers Compensation Commission, Keating DCJ, set out the principles pertaining to inadequacy of reasons. The then President stated that the inadequacy of reasons must disclose “that the Arbitrator failed to exercise his statutory duty to fairly and lawfully to determine the application”.[16] Further, his Honour said that “[t]he standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker”.[17]
(f)    The obligation of a Commission decision maker to give reasons for their decisions was examined in Fisher v Nonconformist Pty Ltd.[18] Kirk JA noted that the duty for administrative decision makers was not the same as that applying to judges. His Honour remarked that usually the duty is expressed in a statute, noting the provisions of s 294(2) of the 1998 Act and r 78 of the Rules that apply to the Commission. In respect of the duty upon judges to give reasons, Kirk JA referred to the following passage from Ming v Director Public Prosecutions (NSW):[19]
“What can be seen is that the judicial duty to give reasons does not extend to referring to every argument or piece of evidence. Relevantly for current purposes, what is required is that the judge expose the reasons for resolving a point critical to the contest between the parties, do justice to the issues posed by the parties’ cases, refer to evidence that is important or critical to the proper determination of the matter, and generally explain any conclusion on a significant factual or evidential dispute that is a necessary step to the final decision.”[20]
[12] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430.
[13] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 (Wu Shan Liang), [31].
[14] [2005] HCA 40, [64], footnotes omitted.
[15] [2009] NSWWCCPD 75 (Newby).
[16] Newby, [149].
[17] Newby, [15].
[18] [2024] NSWCA 32 (Fisher).
[19] [2022] NSWCA 209 (Ming).
[20] Fisher, [139], quoting from Ming, [43].
As can be divined from the cases above, r 78 provides a short form guidance to members’ decision making, which is consistent with these various authorities. Reasons can be brief, they must expose the member’s path of reasoning in reaching particular conclusions and should not be subject to overly close scrutiny in search of error.
The appellant has not referred to any of these principles in terms, although s 294(2) of the 1998 Act is footnote (17) of the appellant’s submissions in chief.[21] However, the basis upon which the appellant is taking issue with the adequacy of the reasons delivered by the Member is apparent. I will apply these principles to the resolution of Ground One.
[21] Appellant’s submissions in chief, p 5, [31].
I would add to these remarks the requirement for an appellant to prove error. Section 352(5) of the 1998 Act specifies what must be shown before a Presidential member may intervene. This operation of this provision has been described at length in Raulston v Toll Pty Ltd.[22]
[22] [2011] NSWWCCPD 25, [17]–[31].

As to Ground One

The appellant frames his complaint in the following terms:
“18. In reaching her conclusions, the Member gave no weight to the report of Dr Baker and accepted the opinion of Dr Stephen that a vulnerability from the appellant's injury as a young man remained with him and that the early injury referred to in the general practitioner consultations is the injury that occurred when he was 15 years old.
19.    While it may be the case that the back injury at age 15 created a vulnerability to injury in later life, such vulnerability is a manifestation of the egg shell skull principle.
20.    The Member found that the 2018 injury ‘resolved’ by 19 June 2018 or shortly thereafter but the reasoning for the conclusion is absent. The member has apparently accepted the clinical note of Dr Valerie Qu stating Backpain is now resolved. If so, that acceptance involves a misunderstanding of that evidence.
21.    Dr Qu does not say back injury now resolved, but back pain now resolved. Dr Qu also made a note of a discussion about spinal degeneration in the context of disc desiccation, facet joint arthritis and disc bulge at lower discs.
22.    The Member’s finding that the 2018 injury resolved is also inconsistent with the further finding that the appellant suffered flareups in subsequent years.
23.    The Member expressly accepted Dr Stephen’s report. Dr Stephen provided two reports.
24.    In Dr Stephen’s initial report of 9 December 2021, he gives his opinion that disc damage was sustained in 2018 and that the episode in July 2021 represents a recurrence. It is quite usual for back pain to resolve, only to be reignited by trivial incidents some months or even years down the track.
25.    Dr Stephen also said Mr Newitt is currently mildly incapacitated as a result of the work related lumbar spinal injury.
26.    Had the Member relied upon this evidence of Dr Stephen, she could only have found that the injury had not resolved and that the appellant was incapacitated by it at least to some extent.
27.    Dr Stephen expressed a different opinion in a later report of 28 September 2023, after he had been briefed with the physiotherapy consultation notes that included ‘last week fell off a chair - fell on the floor’. Dr Stephen’s later report was based on a different assumption, namely that the incident in July 2021 was a more significant injury than that described by Mr Newitt, resulting in significant lumbosacral disc damage.
28.    The Member did not resolve the underlying conflict in the evidence. On the one hand, the appellant’s unchallenged evidence was that the July 2021 injury occurred whilst getting up from a lounge in his home. On the other hand, the physiotherapist has recorded that the appellant fell off a chair and onto the floor.
29.    There is also a discrepancy as to the date. The physiotherapy notes record that the incident occurred in the week before the consultation, that is, on about 15 September 2021. But the radiology investigation 2 months earlier showed the damage described by Dr Stephen. Accepting, as Dr Stephen did for the purpose of his report of 9 December 2021, that the July 2021 incident was an innocuous event, the July 2021 injury should have been found to be a recurrence of the more substantial injury in 2018.
30.    The Member should have resolved material conflicts in the evidence. To the extent the Member did not do so there was a constructive failure to exercise jurisdiction.”
In reply, the respondent argues the following:
“15. The starting point for consideration of the appellant’s contentions is the distinction the appellant seeks to draw between resolution of back pain and resolution of a back injury. The reason for the appellant seeking to draw that distinction is to attempt to overcome the evidence contained in the clinical record of the appellant’s GP, Dr Valerie Qu dated 19 June 2018 that the appellant’s back pain had resolved. While in an appropriate case that distinction might be valid, the evidence in the present case simply does not support it.
…
17.    The issue in the present case is whether the member’s finding that the appellant’s injury that occurred on 8 June 2018, consisting of an aggravation of underlying pathology, resolved or ceased by or shortly after 19 June 2018, consistent with the clinical record of Dr Qu. It is important to note at this point that the appellant’s case at hearing before the member relied on the clinical records of Dr Qu and did not directly challenge the accuracy of the history recorded by the doctor at that consultation.
18.    Contrary to the appellant’s submission, the member addressed the clinical records of Dr Qu and the subsequent clinical records of Dr Carol Ho and Dr Naomi Jacobs in relation to consultations with appellant between July 2018 and June 2021. The member found at paragraph 34 of the Decision that the [appellant’s] attendance at doctors between 2018 and 2021 was not regular and relevantly that the consultation notes were ‘not helpful’ in causally linking intermittent complaints of back pain to the aggravation injury that occurred on 8 June 2018. The member noted in particular that there was no mention by the appellant of the June 2018 work injury as a cause of his symptoms at those consultations. The appellant does not challenge that accuracy of that finding and it was plainly open to the member on the evidence.
22.    The appellant also submits that the member erred in failing to accept the initial opinion of Dr Stephen expressed in his report dated 9 December 2021 that the incidence of back pain in July 2021 was a recurrence of the June 2018 injury. That submission rests on the assumption that Dr Stephen’s further opinion set out in his report dated 28 September 2023 that the basis for Dr Stephen’s further opinion was the history that the appellant had suffered a more significant injury or injurious event in July 2017 than his description of getting out of a chair. While there was undoubtedly inconsistency between the appellant’s account of the incident and the history contained in the records of Coogee Physiotherapy in September 2021 of the appellant falling off a chair there are more fundamental difficulties facing the appellant’s submission.
23.    First, a careful reading of Dr Stephen’s second report shows that the doctor’s opinion that the onset of significant low back pain in 2021 was due to the [appellant] sustaining ‘a significant right sided, sequestrated disc protrusion with S1 nerve root compression.’ Regardless of any discrepancy in the history of the mechanism of injury the doctor identified significant additional pathology to that shown in the investigations following the incident on 8 June 2018. In his second report, Dr Stephen did not express any opinion that established a causal connection between the aggravation injury in June 2018 and that later pathology.
24.    Second, the member did not place any direct reliance on comments of Dr Stephen about the circumstance of the onset of significant lumber spine and radicular pain in July 2021. The findings made by the member based on Dr Stephen’s opinion were that the appellant had a pre-existing vulnerability in his lumbar spine due to an injury in his teens and that the earlier injury referred to in the GP clinical records was a reference to that injury and not to the injury in 2018. The appellant has not challenged those findings.
25.    Third, and perhaps most fundamentally, the appellant’s medical case fell well short of establishing that the pathology identified in the investigations in 2021 and the lumbar pain with radicular symptoms was causally related to the aggravation injury in 2018. The member correctly rejected the bare assertion made by Dr Baker that the symptoms experienced by the appellant in 2021 were an aggravation of the 2018 injury as the doctor provided no reasoned basis for that assertion. There was no other medical evidence to support it and the appellant has not identified any error in the member failing to have proper regard to such evidence.
26.    The appellant next submits that the asserted failure of the member to resolve what is said to be a conflict in the evidence about the cause of the onset of the appellant’s significant low back pain in July 2021 constitutes an error in the constructive failure of the member to exercise jurisdiction. That submission relies on the presumption that it was necessary for the member to resolve any conflict in the evidence about the description of the circumstances of the onset of the appellant’s significant lumbar pain with radicular symptoms in July 2021.
27.    The member acknowledged that there was a discrepancy in the evidence about the circumstances of the onset of lumber lumbar pain with radicular symptoms in July 2021 at paragraph 27 of the decision. However the member expressly stated that regardless of the circumstances in which the further injury in 2021 occurred she was not persuaded that the 2021 injury was causally related to the aggravation injury in 2018. For the reasons set out in the preceding paragraphs the member was not required to do so.”

In its reply submission the appellant, quite properly, indicated that he has no complaint about the Member’s rejection of Dr Baker’s evidence nor was any issue taken with Dr Qu’s evidence. Specifically, the appellant responds to paragraph [23] of the respondent’s submission in the following way:
“8.     The MRI on 15 June 2018 showed a small annular tear of the L5/S1 disc and a mild focal foraminal L4/L5 disc protrusion causing narrowing which could be irritating the exiting left L4 nerve root. A CT scan on 10 July 2021 showed a focal right sided disc extrusion impinging on the right S1 nerve root. An MRI of 15 July 2021 showed at L5/S1 a moderate focal right subarticular disc extrusion compressing the right S1 nerve root in the subarticular recess.
9.      Dr Stephen referred to both the 2018 MRI and the 2021 MRI in his report of 2 December 2021. He opined that disc damage was sustained in 2018 and the episode in July 2021 represented a recurrence of the 2018 injury, noting It is quite usual for back pain to resolve, only to be reignited by trivial incidents some months or even years down the track.
10.    Whether the appellant’s spinal pathology worsened as a result of degeneration of disc damage sustained in 2018 or further trauma was an issue that the Member needed to resolve. Dr Stephen’s first report is consistent with the former, his second report with the latter.”
The appellant says the issue that required resolution was:
“14. The Member was required to resolve the main factual disputes in the case, including the circumstances in which the appellant’s symptomatology and pathology worsened in 2021 and the causal relationship between the 2018 work injury and his condition in 2021 and thereafter.”
The appellant submits that the Member failed to deal with these issues.

Consideration

The essential complaint pursued by the appellant is that the Member made two factual findings, for which the Member did not provide adequate reasons nor make sufficient factual findings to support those two conclusions.
The first factual finding that is sought to be impugned is that the appellant’s injury had resolved by 19 June 2018, or shortly afterwards. Although the precise paragraph of the Member’s decision has not been identified by the appellant, the findings appear at reasons [29] and [41(a)–(b)]. It is apparent from a reading of the decision that this finding was based upon Dr Qu’s notes of consultations on 12 and 19 June 2018. The Member said the following:
“32. Dr Qu, the general practitioner who the [appellant] consulted on 12 June 2018 following the 2018 injury, noted that the [appellant’s] back pain had resolved. The [appellant] had no symptoms on 19 June 2018. There was a discussion regarding the findings of an MRI and possible nerve root impingement. There was no mention of a work injury.
33. I am persuaded that the [appellant] may have not notified an injury or lodged a claim for the reasons he proffered, but that also he did not do so because his injury was not significant or continuing. It had resolved by 19 June 2018 or shortly thereafter.”
I remark that the appellant specifically takes no issue with Dr Qu’s evidence.[23]
[23] Appellant’s submissions in reply 21 October 2024, [4].
This being the case, it is tolerably clear from the Member’s reasons that Dr Qu’s record that the back pain had resolved by 19 June 2018 formed her reasoning in reaching that fact. Whilst the reasons are short, as contemplated by s 294(2) of the 1998 Act, they are sufficient to expose the Member’s path of reasoning in reaching that conclusion. Given that no issue is taken with Dr Qu by the appellant, quite properly, the Member is entitled to rely on that record.
The appellant states however that while Dr Qu recorded that the lumbar pain had resolved, the doctor did not say that the injury had resolved.[24] The appellant did refer the Member to Dr Qu’s notes,[25] noting the doctor had recorded that the pain had resolved,[26] but did not make the distinction now being made on appeal. It is not an argument that the Member was called upon to decide. It is not an error for the Member to fail to deal with an argument that was not put.[27] This aspect of Ground One is not established.
[24] Appellant’s submissions in chief, [21].
[25] Transcript (T) of proceedings 28 June 2024, T 10–11.
[26] T 11.23.
[27] Brambles Industries Limited v Bell [2010] NSWCA 162, [30].
The second aspect of the ground relates to the factual finding that any incapacity after July 2021 has no causal relationship to the 2018 injury. As with the first aspect of this ground, the appellant has not identified the offending passages of the decision. Having reviewed the decision, the finding appears to relate to those at reasons [27], [28] and [41(f)]. However, unlike the first aspect of this ground, the Member has not, consistent with r 78 and the decided cases I have referenced above, revealed the reasoning which underpins this finding. Whether the 2021 injury was causally related to the 2018 injury was a critical point in the contest.[28] The finding which was undoubtedly made in the three paragraphs I have identified required an explanation by the Member. The respondent’s submissions point to various pieces of evidence that support the finding.[29] Whilst I accept that the Member accepted Dr Stephen’s opinion, and as much is apparent from reasons [41], the Member has not stated how that opinion supports her finding that there was no causal relationship from the 2021 incident and the 2018 injury. Evidence to support the finding exists, as pointed out by the respondent, it is just not possible to know or discern from a reading of the decision as a whole, what were the Member’s reasons for the finding that was made.
[28] Ming, [43].
[29] Respondent’s submissions 15 October 2024, [23]–[25].
I find the second aspect of Ground One to be established.

As to Ground Two

The appellant complains that the Member, either expressly or implicitly, rejected his evidence about the July 2021 incident preferring the recorded history of the physiotherapist dated 22 September 2022.
The appellant complains that his evidence about this was not challenged.
The appellant also complains that the dangers in discounting evidence based upon medical records is well known and was discussed by Basten J in Mason v Demasi.[30]
[30] [2009] NSWCA 227 (Mason v Demasi), [2]–[3].
In reply, the respondent states the following:
“30. The appellant’s first submission in support of Ground 2 asserts that the member ‘apparently or implicitly rejected the appellant’s account of the incident in July 2021… and has preferred the history recorded in the physiotherapy note of 22 September 2022 (sic).’ The appellant has not identified the portion or portions of the member’s decision relied on to support that submission. It is plainly inconsistent with the statement made by the member at paragraph 27 of the Decision (referred to at paragraph 26 above) and should be rejected.
31. It flows from the submission in the previous paragraph that the appellant’s reliance on the observation of Basten J in Mason v Demasi are not relevant. In any event the decision can be readily distinguished as his Honour’s observations related to a direct finding about the credit of a witness. That is not the case here as the member did not make any adverse finding about the credit of the appellant.
32. The appellant’s next contention that asserted ‘failure’ of the respondent to directly challenge the appellant’s version of the circumstance of the onset of lumbar pain with radicular symptoms in July 2021 should lead to an acceptance of the appellant’s evidence on that issue suffers from a number of flaws. First, the appellant’s reliance of the ‘rule’ in Browne v Dunn is misconceived. The rules of evidence do not apply in proceedings in the [Commission]. Leave to cross-examine a witness must be sought [and] will be permitted only in limited circumstances. Second, whilst it has been acknowledged in some cases that there might be a need for directly contradictory facts to be put to a witness as a matter of fairness, the ‘rule’ is not absolute and is subject to exceptions. Those exceptions were neatly described in Dodson v Woolworths Group Ltd [2022] WASCA 22 where the plurality stated [at 93]:
‘It is well established that the failure to accept evidence given by a party that was not challenged in cross-examination will not be a breach of the rule in Browne v Dunn, or otherwise give rise to unfairness, if, through other means such as pleadings, submissions or the general manner in which the case is conducted, the party is on notice that the evidence is challenged.’”
The respondent says that the appellant was aware of the discrepancy between what he said and the physiotherapy notes, that dispute was evident in the material.
In reply the appellant says that Browne v Dunn is not limited to credit findings and that it is not a mere rule of evidence. Rather the rule is an important rule of fairness. The appellant states:
“25. The present case is an example of the importance of the rule in Browne v Dunn to the administration of justice. Although the Member did not expressly reject the appellant’s evidence on the point in contention, it is clear from the terms of [27] and [28] that she did not accept it. Had the Member accepted the evidence, she would have needed to consider the reasoning in Dr Stephen's first report, and reject the reasoning in his second report. The Member did neither.”
The appellant refers to Practice Direction 18.6 (sic) and says that the respondent made no application to cross-examine the appellant.

A few principles about the rule in Browne v Dunn in the Commission

Firstly, the rules of evidence do not apply to Commission proceedings, and the Commission is to “act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”[31]
[31] Section 43 of the 2020 Act.
Secondly, both parties have in error referred to Practice Direction 18.6. This is the Practice Direction made pursuant to the Workers Compensation Commission Rules 2011 which was repealed upon the commencement of the 2020 Act on 1 March 2021.[32] This matter, having been commenced after 1 March 2021 is therefore not a “pending proceeding” as contemplated in Schedule 1, Part 2, Division 4A, Subdivision 1, clause 14A (1) of the 2020 Act and is therefore subject to the rules and Procedural Directions made under the 2020 Act. The applicable rules are the Personal Injury Commission Rules 2021, r 34 (Calling witnesses) and r 67 (Documents lodged under division). These rules are supported by Procedural Direction PIC1 at paragraph [38] which provides for examination of witnesses by leave and by Procedural Direction PIC 10. I will deal with this aspect of the ground of appeal on the basis of the applicable rules and procedures.
[32] Section 67 of the 2020 Act.
Thirdly, by a combination of the various rules and procedural directions, each party must lodge and serve material, including witness statements, which they intend relying upon.
Fourthly, there is no right to cross-examine in the Commission, leave is required. This situation was discussed in Aluminium Louvres & Ceilings Pty Ltd v Xue Qin Zheng[33] in relation to the former Workers Compensation Commission. The principles set out in Aluminium Louvres are equally applicable to the Commission having regard to the legislation, rules and Procedural Directions (referred to above) being substantially consistent with those considered by the Court of Appeal.
[33] [2006] NSWCA 34 (Aluminium Louvres), [37].
Fifthly, there is in the context of Commission proceedings, no denial of natural justice or breach of the rule in Browne v Dunn if the party is aware of the case that he or she has to answer and there is an opportunity to reply.[34] In Winter, at [81], the following was said about the rule in Browne v Dunn:
“… The consequence of these decisions is that the circumstances in which Browne v Dunn will require matter to be put to a witness in cross-examination will depend upon the nature of the pre-trial preparation there has been, and whether that pre-trial preparation has been sufficient to give notice of the submission ultimately intended to be put to the court. An aspect of this is that Browne v Dunn will require more extensive cross-examination in a case where all the evidence is given orally, than is necessary in a case where the substance of the evidence proposed to be given by each side is notified in advance by affidavit or statement.”
I would remark that the effect of the Commission Rules, and in particular r 67, is to enable issues to be identified in the filed material well prior to the hearing.
[34] New South Wales Police Force v Winter [2011] NSWCA 330 (Winter) from [81].
Sixthly, the rules of procedural fairness apply to Commission proceedings.[35]
[35] South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 (Edmonds), [91].

Consideration

The appellant complains about the Member’s rejection of his “unchallenged evidence” of the July 2021 incident in apparent breach of the rule in Browne v Dunn.
In order to evaluate this complaint, it is necessary to examine the material exchanged between the parties. The appellant provided two statements and a statutory declaration.[36] In both statements the appellant describes the circumstances of the recurrence of back pain at home in July 2021. In the statutory declaration, declared 8 December 2023,[37] the appellant having read Dr Stephen’s report dated 28 September 2023,[38] which provides an opinion about the July 2021 incident, specifically responds to the doctor’s opinion. This response is at ARD p 21 in a paragraph which is coloured red and followed by a screen shot from the Coogee Physiotherapy notes dated 22 September 2021.
[36] ARD, pp 3–24.
[37] ARD, pp 19–24.
[38] ARD, p 66.
Dr Stephen’s report was obtained by the respondent and had been provided to the appellant. At ARD p 68 in answer to two questions, Dr Stephens provides the following opinion:
“1. Do you consider the worker had recovered from any injury in 2018 by April 2019? Please provide your clinical reasoning why or why not.
Taking into account the three occasions that I have mentioned, the initial injury to the back aged 15, the incident of 2018, and the incident of July 2021, my conclusion is that prior to 8 June 2018, Mr Newitt's back was not 100% but was tolerable, that the incident of 8 June 2018 did produce an exacerbation of symptoms which had largely settled and that the most recent incident, that of early July 2021, which in point of fact involved a significant fall and not the simple getting off a couch that Mr Newitt described to me, was probably the most significant and resulted in significant lumbosacral disc damage, expressing itself in the form of a sequestrated disc prolapse with right-sided S1 nerve root compression. The radicular symptoms have now subsided and his mechanical back pain, whilst still present, is to some extent improving.
2. Do you consider there was an exacerbation of the worker’s back pain in 2021 caused by a fall? Please provide your clinical reasoning why or why not. If so, do you believe this is the cause of any ongoing symptoms and incapacity?
See paragraph one above. It is my opinion that the incident at home of 2021 was the most significant of the three and is the chief cause of ongoing symptoms and incapacity.”
I would also remark that there are the following MRI reports of the appellant’s lumbar spine in the material. One is dated 15 June 2018, and was thus performed shortly after the incident where the appellant says he injured his back at work with the respondent.[39] The second MRI of the lumbar spine was performed on 15 July 2021, shortly after the reported home incident.[40]
[39] ARD, p 108.
[40] ARD, p 107.
The MRI report of 15 June 2018 records:
“Small left posterolateral annular tear of the L5/S1 disc. Mild focal left foraminal L4/L5 disc protrusion causing mild left neural foraminal narrowing which could be irritating the exiting left L4 nerve root.”
The MRI report of 15 July 2021 comments:
“Focal disc extrusion at L5/S1, compressing the right S1 nerve root in the subarticular recess.”
Additionally, there is a CT scan report dated 10 July 2021,[41] which records:
“At L5/S1, there is a diffuse circumferential disc bulge. However, there is a more focal moderately large disc extrusion. This extends to the subarticular recess on the right. It measures at least 12mm x 13mm transversely. It is indenting along the anterior aspect of the thecal sac and is impinging on the right S1 nerve root. This was not previously present. No neural foraminal stenosis at this level.”
[41] ARD, p 105.
What these examinations reveal is that the condition of the appellant’s lumbar spine was different in 2021 as opposed to what had been revealed in 2018.
Finally, for the sake of completeness, the ARD itself records the date of injury as being 8 June 2018 and the date compensation was claimed as being 19 October 2021, with the “Injury Description” being “Workers [sic] sustained aggravation to lower back injury through the installation of roofing equipment.” The s 78 notices issued by the respondent,[42] inter alia, put injury in dispute, including any aggravation.
[42] ARD, pp 46, 52 and 58.
Neither party sought to adduce oral evidence or cross-examine the appellant.[43]
[43] Reasons, [8].
The dispute about the July 2021 aggravation was clearly notified in the material contained in the ARD I have described above. Indeed, the key contest between the appellant’s evidence and Dr Stephen’s opinion was specifically dealt with in detail by the appellant in his statutory declaration. Counsel for the respondent addressed the Member on the disparities in the findings of the MRI and CT scans.[44]
[44] T 21–22.
In short, the appellant’s evidence on the 2021 incident, far from being “unchallenged” as is submitted on appeal, was in fact very much in dispute by the respondent, by Dr Stephen’s opinion and in the differing results of the various investigations.
The appellant understood that his evidence was being challenged in this regard, hence the rebuttal in his statutory declaration. The appellant had the opportunity to and did respond.[45] Procedural fairness was thus observed.[46]
[45] Aluminium Louvres.
[46] Edmonds.
Having regard to these facts, nothing turns on the appellant not being cross-examined. The issue had been articulated in the material exchanged and both parties were aware of the issue in dispute.[47] At the hearing before the Member, counsel for the respondent, unsurprisingly, described the July 2021 event as a “novus actus”.[48] I say this submission is unsurprising because it is apparent from a consideration of the material that this was a real issue in the dispute. Equally unsurprising was the fact that there was no objection from the appellant’s counsel that this submission breached the rule in Browne v Dunn or otherwise caught the appellant by surprise or was not a matter previously disputed.
[47] Winter.
[48] T 29.14.
The complaint that the rule in Browne v Dunn was breached has no merit. Once the context in which disputes are raised and then contested in the Commission is understood, and those principles applied to the present case, it can be seen that the issue about the July 2021 incident was well known to the parties. Indeed, it was so well known that the appellant dealt with this issue in detail in his statutory declaration.
I would also note the complaint the appellant makes about the physiotherapist’s note of 22 September being preferred to his evidence or account about the 2021 injury, invoking the decision of Basten JA in Mason v Demasi. When I read the passages of the decision which contain the Member’s dispositive reasoning, the Member has not used the clinical note in preference to the appellant’s evidence. Indeed, the decision is silent on this issue in terms of a positive finding. Axiomatically, the Mason v Demasi issue does not arise.

Ground Two has not been established. Ground Two is dismissed.

COSTS

The appellant has sought an order for the “maximum regulated costs”.[49] There is no power to make such an award and I therefore decline to do so.
[49] Appellant’s submissions in chief, [42].

DECISION

This appeal has succeeded in part only. As the successful aspect of the appeal related to a failure to provide adequate reasons, it will be necessary to revoke the Certificate of Determination and remit the matter to be heard and determined by another Member.
I revoke the Certificate of Determination dated 13 August 2024 (wrongly dated 13 August 2023).
I remit the matter to be heard and determined by another member.

Judge Phillips
PRESIDENT

7 May 2025