Northern Beaches Services Pty Ltd v Workers Compensation Nominal Insurer (Icare) - [2024] NSWPICPD 26

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Northern Beaches Services Pty Ltd v WORKERS COMPENSATION NOMINAL INSURER (ICARE) [2024] NSWPICPD 26
APPELLANT:	Northern Beaches Services Pty Ltd
RESPONDENT:	Workers Compensation Nominal Insurer (icare)
INSURER:	Uninsured
FILE NUMBER:	A1-W4407/22
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
DATE OF APPEAL DECISION:	8 May 2024
ORDERS MADE ON APPEAL:	1. The Senior Member’s Certificate of Determination dated 20 June 2023 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – notice to reimburse pursuant to s 145(1) of the Workers Compensation Act 1987 – application brought by uninsured disputing reimbursement notice – clause 2A of Schedule 1 to the Workplace Injury Management and Workers Compensation Act 1998 – assertion by uninsured that the worker was employed by labour hire agency who had a workers compensation policy of insurance – the Senior Member held that the worker was employed directly by the uninsured – challenge on appeal to the Senior Member’s findings made from the evidence – no error found in the Senior Member’s reasons
HEARING:	On the papers
REPRESENTATION:	Appellant:
Ms T Sukkar, solicitor
G&S Law Group
Respondent:
Mr F Doak, counsel
HWL Ebsworth Lawyers
DECISION UNDER APPEAL:	Northern Beaches Services Pty Ltd v Workers Compensation Nominal Insurer (icare) & Ors [2023] NSWPIC 289
SENIOR MEMBER:	Ms K Haddock
DATE OF MEMBER’S DECISION:	20 June 2023

INTRODUCTION

The appeal is from a decision of a Senior Member of the Personal Injury Commission (the Commission), Workers Compensation Division, made 20 June 2023, whereby the appellant pursuant to s 145(4) of the Workers Compensation Act1987 (the 1987 Act) was ordered to reimburse the respondent the amount of $39,633.87.
The determination arose out of injuries to the left knee sustained by Mr Michael Proud on 24April 2021. Mr Proud made a claim in respect of his injuries which was accepted by the Workers Compensation Nominal Insurer (icare) (the Nominal Insurer) who made payments to, for and on his behalf.
On 17 June 2022 the Nominal Insurer issued a Notice to Reimburse pursuant to s 145(1) of the 1987 Act. The appellant lodged a miscellaneous application in the Commission on 14 July 2022.
The appeal challenges the determination in favour of the respondent.
Mr Proud is aware of the appeal proceedings and through his solicitors has indicated that he does not wish to be joined to the appeal.
For the reasons that follow, the appeal is dismissed and the Certificate of Determination of the Senior Member is confirmed.

THE SENIOR MEMBER’S STATEMENT OF REASONS

The Senior Member noted that the issues in dispute were:
(a)    whether the respondent had satisfied the precondition of non-insurance to enliven the jurisdiction under Part 4, Division 6 of the 1987 Act;
(b)    whether Mr Proud was a worker employed by the appellant;
(c)    whether Mr Proud was a deemed worker of APM under a labour hire contract;
(d)    whether the statement of Sk Md Anisur Rahman, Principal of the appellant, dated 24June 2021 was admissible;
(e)    whether Mr Proud sustained injury on 24April 2021;
(f)    whether employment was a substantial contributing factor to the injury, and
(g)    Mr Proud’s capacity to work.
The Senior Member delivered a comprehensive Statement of Reasons in which she set out at length the relevant evidence, the legislation, the parties’ submissions and her findings.[1]
[1] Northern Beaches Services Pty Ltd v Workers Compensation Nominal Insurer (icare) & Ors [2023] NSWPIC 289 (reasons).
The appellant’s director and sole shareholder was Mr Anisur Rahman.
Mr Proud was registered with a job agency, Serendipity Pty Limited t/as APM Employment Agency (APM).
Mr Proud saw an advertisement on Gumtree under the name “Anis”. The advertisement sought a store assistant to work in a Lakemba shop. He wanted to apply for the position. He informed APM who arranged for him to be interviewed by Mr Rahman on 14 April 2021.
A Commonwealth Government subsidy was to be provided at the rate of 50% of the wages paid to Mr Proud provided the placement went for a specified period.
After the interview, APM received a message from Anis (Mr Rahman) offering Mr Proud a position for work on 3 days; Monday and Saturday 11 am to 3.30 pm, and Sunday, 11 am to 5 pm.
Mr Proud worked on Monday 19 April 2021 from 11 am to 3.30 pm, Mr Rahman told him that he would be paid $20 an hour.
Mr Proud worked on 22 April 2021 for 5 hours. He worked again on 23 April 2021 from 11 am to 5 pm.
He worked on 24 April 2021 starting at 11 am. At about 1.30 to 2 pm he was injured.
Although there was some inconsistency in the description of how the injury was sustained, there seems to have been no doubt that he suffered some injury at the appellant’s premises.
The Senior Member quoted Mr Proud’s statement as to the circumstances of the injury as follows:
“He was putting a box down in front of him, in front of another box, and moving the boxes around. As he was standing straight, he pivoted his left leg out, his foot went onto a small piece of carpet, his foot slipped and his knee went to the left, then back to the right, and he fell onto the ground.”[2]
[2] Reasons, [54].
The Nominal Insurer appointed an investigator, Ms Pont, to obtain statements and prepare a report.
Mr Rahman gave several statements for the purpose of the proceedings.
In his first statement dated 24 June 2021 he said, as recorded by the Senior Member:
“Michael Proud called him about a job he advertised on Gumtree. It was advertised as being for a part-time employee, for 20 hours [a week]. The employment was casual to start, and if the person was a good employee, he would put them on as a part-time or full-time employee.
Mr Proud rang him, said he was looking for work, and he wouldn’t need to pay full wages. Centrelink would pay the other half, under a subsidy.
He had a call from an agency in Bankstown. He could not remember the name of the person who called. She confirmed Michael Proud would be paid under the Centrelink subsidy. She took his details and said she would apply the job subsidy.”[3]
[3] Reasons, [76]–[78].
As recorded by the Senior Member, in the statement dated 7 February 2023 Mr Rahman said:
“On or about 24 June 2021, Ms Pont attended the premises as agreed, and expected to be about one hour. She was accompanied by a Bengali interpreter. However, most of the conversation was conducted directly between [Mr Rahman] and Ms Pont in English. He is proficient in English. However, he continued to think in Bengali, and for complex matters would translate from English to Bengali.
During the meeting, Ms Pont ‘departed from the agreed purpose of the attendance’ and engaged him in a conversation in English, during which she volunteered advice about how the interests of the company and himself would be best served by providing information in response to questions about the circumstances of the claim.”[4]
[4] Reasons, [119]–[120].
Mr Rahman was born in Bangladesh where he studied a Bachelor of Business with a major in accounting. His family ran an import and export business, which he was involved in throughout most of his life. He came to Australia on a student visa in 2009, to study a master’s degree in business and worked part time. He never completed the degree, as he got involved in importing and selling merchandise. In April 2014 he incorporated the appellant. The company employed him as a manager and he was its only full-time employee.[5]
[5] Reasons, [139]–[141].
The advertisement on Gumtree to which Mr Proud responded referred to “Salary Plus Performance bonus” and “will provide work experience”. The terms of the advertisement were noted by the Senior Member at [166] to [170] of the reasons.
Mr Rahman alleged that Ms Pont had misled him during the course of taking the statement of 24 June 2021. Ms Pont provided a statement detailing how the interview and statement taking occurred on that occasion.
The Senior Member summarised the most important points of Ms Pont’s evidence:
“She [Ms Pont] had reviewed Mr Rahman’s statement dated 7 February 2023.
The statement she prepared and signed with Mr Rahman displayed the name Sk Md Anisur Rahman. Her standard procedure was to request a driver’s licence or other photographic identity confirmation before commencing an interview. To the best of her recall, she followed that procedure to confirm his legal name as shown on his licence prior to the interview.
She did not agree or expect for the interview to be of one hour’s duration and denied that was conveyed to Mr Rahman. In 10 years of completing employer interviews with an interpreter, she would estimate the time required to be a minimum of two hours.
Her standard procedure was to ask the interpreter to read the Consent to Interview Form (the form), and confirm the interviewee understood and signed to same.
She then required the interpreter to read the first six paragraphs of a draft statement, to ensure the interviewee understood the purpose of the statement, the legality of same, her role and who she was acting on behalf of, how and when any personal information would be used, information on the Privacy Charter of the company she was acting on behalf of, and who the statement could be disclosed to if it was the subject of litigation or a formal dispute.
Once the interpreter explained this, and the interviewee acknowledged they understood and accepted, and signed the form, the interview proceeded. This portion of the interview would take at least 30 minutes.
The interview was then conducted, where she typed up answers to questions asked. On completion of the interview, she requested the interpreter read back the entire statement and [she altered it] where requested by the interviewee. She then printed the statement on her personal printer, and it was signed by the interviewee, the interpreter and herself as the witness.”[6]
[6] Reasons, [302]–[308].
The Senior Member summarised evidence from additional witnesses, Ken Georges, Theresa Sukkar, George Giotis, Elee Georges, general practitioner Dr Georgy, Bankstown-Lidcombe Hospital, Alasdair Brown, in circumstances which do not require further mention.
The evidence of APM was summarised by the Senior Member. Relevantly, she observed:
“The assistance APM could provide to Mr Proud’s employer could include providing tailored assistance to better support his transition to employment; re-negotiating hours, duties or modifications on his behalf; discussing and implementing any eligible wage subsidy agreements; and verifying employment details.
The consent noted that being able to work with the employer allowed APM to provide Mr Proud with greater assistance to maintain his employment, but it would only do so with his consent, which Mr Proud provided, signing on 20 April 2021. The employer details were recorded as the business name and address of the [appellant], with the contact “Anis” and a mobile number.
APM would continue to support Mr Proud for at least 52 weeks after he had obtained employment. His authority remained valid while he was participating in the [Disability Employment Services] program.
The documents included a Wage Subsidy Agreement. The participant was named as Mr Proud. The employment service provider was APM. The employer details were those of the [appellant], with Mr Rahman named as the contact.
The employment position details were those in the Employment Placement Details. The employment position and subsidy start date was 19 April 2021, and the subsidy end date was 18 October 2021. The maximum subsidy payable was $1,650.
The terms and conditions included that the participant (Mr Proud) must be employed and paid in accordance with the relevant award classification for the whole period of employment, and subsidies would only be paid for the hours and weeks he actually worked.”[7]
[7] Reasons, [346]–[351].
The Senior Member summarised the evidence of the general practitioner and Bankstown-Lidcombe Hospital, which Mr Proud attended on 24 April 2021 with a left knee injury at the workplace. He was assessed and reviewed at the Emergency Department and the examination showed mild effusion in the left knee.
The treating orthopaedic surgeon, Dr Konidaris, recorded a history that Mr Proud sustained a Schatzker 1 lateral tibial plateau fracture while at work on 24 April 2021. He was three days into his work as a packer and slipped on the tiled floor injuring his left knee.
The Senior Member summarised the parties’ various submissions and set out the provisions of the legislation.
With respect to the issue of non-insurance the Senior Member found:
“Firstly, the [appellant’s] submission that the respondent has not satisfied the pre-condition of non-insurance is rejected.
The [appellant], through its principal, Mr Rahman, has conceded that it did not hold a statutory policy at the relevant time.
The provisions of ss 141, 142 and 145 of the 1987 Act are not mandatory. There was no requirement that [the Nominal Insurer] take any of the actions referred to in those sections as actions it ‘may’ take.”[8]
[8] Reasons, [523]–[525].
The Senior Member quoted from the decision of Keating P in Kula Systems Pty Ltd v Workers Compensation Nominal Insurer.[9] She distinguished Sun Alliance & Royal Insurance Australia Limited v WorkCover Authority (NSW)[10] where Bishop CCJ construed the word “may” in s 142(1) of the 1987 Act as mandatory. She said, with respect to his Honour, that his Honour appeared to have misquoted the section and the publication of the notice was not relevant to his decision.[11] She distinguished the decision of WorkCover Authority of New South Wales (on behalf of the Workers Compensation Nominal Insurer) v Sadler[12] on the basis that the observations of Deputy President O’Grady were apposite to the particular circumstances of Ms Sadler’s claim. The Senior Member said:
“O’Grady DP’s observations were apposite to the particular circumstances of Ms Sadler’s claim. I do not accept that they establish that there was any obligation on the respondent to issue a notice on APM or any other entity.
Section 141(4) provides that ‘employer’ includes any person the Nominal Insurer has reason to suspect is an employer. For the reasons given below, the Nominal Insurer had every reason to ‘suspect’ that the [appellant] was an employer.
The respondent accepts that it bears the onus of establishing that Mr Proud was a worker employed by the [appellant]; that he sustained injury in that employment; that the injury resulted in incapacity and the need for medical treatment; and whether the reimbursement sought exceeds the amount of payment made.”[13]
[9] [2018] NSWWCCPD 10 (Kula Systems).
[10] (1995) 12 NSWCCR 278.
[11] Reasons, [528].
[12] [2009] NSWWCCPD 127.
[13] Reasons, [531]–[533].
On the issue of “worker”, the Senior Member set out s 4 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) defining worker, and cl 2A of Sch 1 to the 1998 Act in respect of contractors and labour hire, and said this:
“The [appellant] submitted that it did not employ Mr Proud, and APM was a ‘labour hire agency’ and deemed to be his employer for the purposes of s 138 of the 1987 Act.
It is in my view necessary to first deal with the [appellant’s] objection to the respondent relying on Mr Rahman’s first statement. I do not propose to exclude the statement.
The [appellant] submitted that Mr Rahman was somehow misled by Ms Pont, the investigator appointed to take his first statement, and/or that, although he was proficient in English, he thought in Bengali and for complex matters, translated from English to Bengali.
The submission is rejected. Ms Pont has given evidence about the circumstances in which Mr Rahman’s first statement was taken.
Ms Pont advised Mr Rahman in her email dated 26 May 2021 of the circumstances of her involvement. She stated that she had no part in the claim decision, but her role was to assist [the Nominal Insurer] by obtaining information. She has given evidence that she had no vested interest in whether an interviewee provided information, and I accept that evidence.”[14]
[14] Reasons, [536]–[540].
The Senior Member went on:
“Mr Rahman’s statement was interpreted for him. He signed each page of the statement, as did the interpreter. He acknowledged he had been advised of the possible use of the statement, including that it may be used in proceedings in the Commission. Ms Pont actually referred to the interpreter having been slow, but stressed the importance of Mr Rahman not having any concerns about what he had signed. He has stated that he is proficient in English. There is no evidence that his subsequent statements were interpreted for him.
Mr Rahman has stated that he believed that if he provided a statement to Ms Pont, then [the Nominal Insurer] would pay compensation and he and the company would be relieved of any liability. That does not explain why, if it was the case that Mr Proud was engaged in an unpaid work trial, Mr Rahman did not simply say so at that time.
I do not accept that, with the assistance of the interpreter, Mr Rahman was not able to convey in his statement the difference between a person carrying out jobs, but not necessarily through a contract of employment, and an employee.
Mr Rahman’s evidence is that he advertised the job on Gumtree; he had always found help through word of mouth; he had in the past recruited by placing ads, to which he often received responses from overseas students; he regularly had Centrelink recipients reply; he started people on casual positions, and sometimes made them permanent part-time employees; and his preference was to advertise and recruit people actively looking for work, rather than go through an agency.
Mr Rahman was clearly experienced in employing people …
…
In my view, the evidence Mr Rahman provided in his first statement regarding having employed Mr Proud is more likely to be correct, taking into account the other evidence, than that in his second statement. It is also supported by the text messages between Mr Proud and [APM] and Mr Proud and Mr Rahman, which are attached to the factual investigation report. There is no reference to a work trial.”[15]
[15] Reasons, [543]–[550].
The Senior Member rejected the submission that APM was, pursuant to cl 2A of Sch 1 of the 1998 Act, Mr Proud’s deemed employer.[16]
[16] Reasons, [551].
The Senior Member characterised APM as follows:
“APM did not hire Mr Proud’s labour to the [appellant]. As part of his [Disability Employment Services], it supported him to gain employment, and could provide assistance to his employer, including negotiating with it on his behalf.
As the respondent submitted, the nature of the scheme, under which APM was to arrange for payment of a subsidy to the [appellant], is not consistent with a commercial labour hire agreement. That would involve APM lending Mr Proud’s services to the [appellant], in return for which it would make payment to APM. APM was not in any sense hiring Mr Proud’s labour to the [appellant].
As the respondent further submitted, in any event, the requirements of subclause 2A(2) were not satisfied by the arrangement.
The evidence has established to my satisfaction that Mr Proud was a ‘worker’ employed by the [appellant]. APM was not a deemed employer.”[17]
[17] Reasons, [552]–[555].
On the issue of injury the Senior Member found:
“While Mr Proud has given somewhat differing accounts of the precise mechanism of injury, that does not mean that the conclusion cannot be reached that he sustained injury arising out of or in the course of his employment. The evidence establishes that he did sustain such an injury; and I so determine.”[18]
[18] Reasons, [560].
The Senior Member considered the operation of s 9A of the 1987 Act. She referred to the appellant’s submission regarding the various scientific studies relating to osteopenia which it relied on to submit that Mr Proud may have suffered a spontaneous fracture.

The Senior Member observed that the appellant had not adduced any medical evidence in support of its submission on this issue.
The appellant submitted that Dr Konidaris’ evidence could not be accepted as expert evidence.
The Senior Member rejected these submissions.[19] Having referred to the Personal Injury Commission Rules 2021 (the 2021 Rules) and the Commission’s Procedural Directions she said:
“Dr Konidaris was not qualified by either party. He treated Mr Proud’s injury. Had it been necessary, and I do not believe it is, I would have ordered that his evidence was admissible. If the [appellant’s] submission was correct, then evidence from treating doctors would almost never be admissible in proceedings in the Commission.
The [appellant] has not relied on any medical evidence. Dr Konidaris did not suggest that Mr Proud’s injury was due to, or could have been due to, osteopenia. While it may have made him more susceptible to fractures (and there is no evidence to that effect), an employer takes its employees as it finds them.
The [appellant] sought to rely on ‘medical literature’. As the respondent did not object to the evidence, I have reviewed it.”[20]
[19] Reasons, [564].
[20] Reasons, [570]–[572].
The Senior Member then set out in bullet points what that evidence demonstrated. She said none of the evidence relied upon by the appellant is persuasive.
Her ultimate conclusion was that the evidence established that employment was a substantial contributing factor to the injury sustained by Mr Proud.[21]
[21] Reasons, [575].
On the issue of incapacity and medical treatment the Senior Member noted that Mr Proud provided to the respondent Certificates of Capacity that recorded his capacity for work. She said:
“There is evidence that the respondent provided and updated injury management plans, and Mr Proud cooperated with its rehabilitation provider, Rehab Management, providing weekly job logs. Rehab Management was active in liaising with both his GP and physiotherapist to obtain approval for an upgrade in the hours he could work, and this was achieved. The fact that he was limited to using public transport was a factor in his ability to obtain employment.
I am satisfied that the weekly benefits paid by the respondent were appropriate.”[22]
[22] Reasons, [577]–[578].
Although the appellant made no submissions with respect to the medical treatment, the Senior Member said that she was satisfied that the medical and related treatment undergone by Mr Proud was reasonably necessary as a result of the injury.
The Senior Member’s ultimate conclusion was as follows:
“I have determined that on 24 April 2021 Michael Proud was a worker employed by the [appellant]; on 24 April 2021, Mr Proud sustained injury to his left knee arising out of or in the course of his employment with the [appellant], to which employment was a substantial contributing factor; Mr Proud was entitled to payment of weekly compensation and medical expenses paid to him, for and on his behalf, by the respondent; and at all relevant times the [appellant] did not hold a policy of workers compensation insurance.”[23]
[23] Reasons, [581].
She ordered that the appellant reimburse the respondent.

PROCEDURAL MATTERS

Time

The parties agreed that the appeal was commenced within time.

THRESHOLD ISSUES

The parties agree that the monetary threshold is satisfied.

ON THE PAPERS

The parties submit the appeal can be dealt with on the papers.
Section 52(3) of the Personal Injury Commission Act2020 (the 2020 Act), together with Procedural Directions PIC2 and WC3 provide that I may be satisfied that the documents and submissions of the parties provide sufficient information so the appeal can be determined on the papers without holding any formal hearing. I am so satisfied in this matter and propose to deal with the matter on the papers without holding any conference or formal hearing.

Nature of the appeal

The jurisdiction provided by s 352(5) of the 1998 Act is one limited to a determination of whether the decision appealed against was or was not affected by error of fact, law or discretion and to the correction of such error. The appeal is not a review or a new hearing.

Interlocutory decision

The decision under appeal is not an interlocutory decision.

GROUNDS OF APPEAL

The appellant raises the following grounds of appeal to the Senior Member’s decision:
“A     Error of law – jurisdictional – a constructive failure to exercise the Commission’s jurisdiction.
B      Erred in law and jurisdictional error in drawing an inference of injury, employment as a substantial contributing factor in incapacity when there was no evidence or insufficient evidence to do so.
C      Errors of law – drawing inferences favourable to the Respondent where they were not open on the evidence to make a finding of worker.
D      Error of law jurisdictional error – reliance on the report of Dr Konidaris for an expert purpose and a denial of procedural fairness.
E      Error of law – jurisdictional error – no evidence (insufficient evidence) of incapacity and failure to engage in the evidence relied (as written).
F      Erred in law and jurisdictional error – failure to afford procedural fairness.”

GROUND A – CONSTRUCTIVE FAILURE TO EXERCISE THE COMMISSION’S JURISDICTION

Appellant’s submissions

The appellant contended that it was a condition precedent to the exercise of the Commission’s jurisdiction that the Commission be satisfied that there was no employer holding a valid statutory policy of insurance upon which Mr Proud could claim, or in the alternative for the respondent to give notice to recover money paid.
The appellant submits:
“The Appellant’s primary submission was that the employment agency, [APM], with whom Mr Proud was registered and who referred and negotiated on Mr Proud’s behalf, had a statutory policy of insurance and was the deemed employer for the purposes of cl 2A Schedule 1 of the [1998 Act].
The condition precedent of non-insurance to invoke the Commission’s jurisdiction under Part 6 Division 4 of the [1987 Act] required more than establishing the Appellant did not have a relevant statutory policy.
If the Respondent could not establish that there was no employer for the purposes of s 138 [of the] 1987 Act that did not have insurance, then the compensation paid to Mr Proud was ultra vires the power of the Respondent and in the nature of an ex-gratia payment and not recoverable under s 145 of the 1987 Act and did [not] provide a jurisdictional basis to issue a notice under s 145(1) [of the] 1987 Act.
It is not apparent whether the Member found the Respondent bore the onus of establishing jurisdiction or whether in respect of the issue of jurisdiction the Member reversed the onus and required the Appellant to prove that APM was the deemed employer.”[24]
[24] Appellant’s submissions, [2.3.6]–[2.3.9].
The appellant submits that the respondent mischaracterised the role of APM by accepting the submission that the arrangement was not consistent with a commercial labour hire arrangement.
The appellant submits:
“There is no evidence of the commercial arrangements of APM with Centrelink or any other third party which enabled the Member to find ‘the nature of the scheme, under which APM was to arrange for payment of a subsidy to the [appellant] – there was no evidence from APM. APM did far more than ‘arrange for payment of a subsidy to the [appellant]’ which is documented in the job placement and employment arrangement.
The host employer had ‘reporting’ obligations and the arrangement was monitored by APM. There were restrictions on the duties of the placement and penalties imposed on the host employer.”[25]
[25] Appellant’s submissions, [2.3.22]–[2.3.23].
The appellant submits that the construction adopted by the Senior Member failed to have regard to the inclusion in cl 2A of Sch 1 of the word “arrangement”. The appellant submits that the “provision is drafted broadly to extend to situations where there is not a contract hence the inclusion of an arrangement.”[26]
[26] Appellant’s submissions, [2.3.25].
The appellant concludes:
“The Respondent cannot demonstrate that Mr Proud was ever eligible or that non-insurance under s 140(1) [of the] 1987 Act was satisfied or that the Respondent could not now claim recovery of the money paid under s 140(3) [of the] 1987 Act from the insured deemed employer APM.”[27]
[27] Appellant’s submissions, [2.3.31].

Respondent’s submissions

The respondent submits that the thrust of the appellant’s submission appears to be that the Senior Member erred in either failing to find that the Nominal Insurer bore the onus of proof of non-insurance or in accepting that the Nominal Insurer had met that onus by showing that APM was (not) an employment agency within the meaning of cl 2A of Sch 1 to the 1998 Act.
The appellant’s submissions as to onus should be rejected.
The respondent cites Kula Systems at [192]–[193].
The appellant’s submission that the Nominal Insurer was required to show that there was no other insured employer before it had “jurisdiction” to seek recovery of payments under s 145 misconceives the nature of the jurisdiction.
The respondent submits:
“If the facts establish that [Mr Proud] was working for an employer, sustained injury while performing that work and the employer was not insured then prima facie the Nominal Insurer is entitled to seek repayment of workers compensation benefits paid in respect of that injury. No question of ‘jurisdiction’ arises.”[28]
[28] Respondent’s submissions, [15].
The respondent asserts that the Senior Member’s approach to the issue of onus discloses no error and the appellant’s submission should be rejected.
On the appellant’s contention that the Senior Member erred in failing to find APM was Mr Proud’s employer at the time of the injury, the respondent submits that cl 2A of Sch 1 did not apply and the Senior Member’s finding discloses no error.
The respondent submits that the appellant’s focus on the consideration of the word “arrangement” in the definition of labour hire services contract fails to acknowledge that the definition requires that a person is provided with services to facilitate the performance of work by the person. Emphasis is added to the words “the performance of work”. The respondent submits:
“On no view of the evidence was [Mr Proud] provided with services by APM related to the performance of work. Rather APM’s role was to assist [Mr Proud] to locate a job and to secure employment with an employer. Further any reliance by the Appellant on the matters referred to in paragraphs (a) to (c) of the definition in sub-clause 2A(1) fails to address the point that those are examples of the activities of the person or organisations providing services under a labour hire services agreement. There can be no sense that simply performing the activity noted in paragraph (a) alone and without more would constitute the type of activity that falls within the definition, namely ‘services to facilitate the performance of work by the person.’”[29]
[29] Respondent’s submissions, [20].
The respondent submits that the appellant fails to come to grips with the words that require a labour hire agency to arrange “for the contractor to perform work for a third person ‘the host employer’”.[30]
[30] Respondent’s submissions, [21].
The requirement that the labour hire agency arrange for the contractor to perform work for a third person supports the Senior Member’s comment that the deeming provision required the situation to be consistent with a commercial labour hire agreement. Again, “in no sense was APM arranging for [Mr Proud] to perform work.” APM’s role was to assist Mr Proud to locate a job.
The respondent quotes Qantas Airways v Coleman[31] which refers to the basis upon which a finding may be made by inference from evidence, citing Bradshaw v McEwans Pty Limited.[32]
[31] [2020] NSWWCCPD 42.
[32] (1951) 217 ALR 1.
The respondent submits that the appellant has failed to make out Ground A of the appeal.

The appellant’s submissions in reply

The appellant submits that the error identified simply put is that APM was the deemed employer under cl 2A of Sch 1 to the 1998 Act and as such a claim cannot be maintained under Part 4 – Uninsured Liabilities because there is no uninsured liability, as APM has a statutory workers compensation policy.
The appellant submits that the s 145(5) Certificate is evidence of the matters certified and contained but when contested ceases to be conclusive proof of anything going to the substantive issues. It is not evidence, even prima facie evidence, of the validity of the payments or that the opinion is evidence of the truth of the facts that the Nominal Insurer has made payments ”under Pt 4 Div of the 1987 Act” (as it appears in the submissions).
The appellant’s submission is that the payments made by the Nominal Insurer are ultra vires under Pt 4, Div 6 because there is an insured employer namely APM.
The appellant submits:
“Accordingly, clause 2A [of] Schedule 1 in using ‘arrangement’ seeks to describe in the widest possible way that a ‘labour hire services contract’ is concerned with the substance of a transaction and will extend to any provision of any services which facilitates the performance of work by a person so long as it is not under ‘a contract of service or a training contract’.”[33]
[33] Appellant’s submissions in reply, [1.23].
The appellant submits that cl 2A(a) and (d) (sic, cl 2A(2)(a) and (d)) were satisfied when APM undertook to [Mr Proud] and [Mr Proud] consented to APM giving him support “for at least 52 weeks” post-placing.[34]
[34] Appellant’s submissions in reply, [1.26].

Consideration

Ground A of the appeal appears to assert three points:
(a) the onus of proof was on the respondent to establish that the appellant did not have insurance and that was a condition precedent to the Commission’s jurisdiction;
(b) APM was a deemed employer of Mr Proud such that there was in fact an employer with insurance cover to whom recourse for payment of the claim could and should have been made, and
(c) the Senior Member was in error in finding that cl 2A of Sch 1 did not apply unless there was a commercial labour hire agreement between APM, Mr Proud and the appellant.
The appellant concedes that it did not as of 24 April 2021 hold a policy of insurance for workers compensation.[35]
[35] Appellant’s Submissions, [2.2.1].
Section 140(1)(a) provides that a claim may be made against the Nominal Insurer by any person who considers that s/he has a claim against an employer for compensation under the Act if “(a) the employer is uninsured”. Mr Proud’s claim was against the appellant as his employer.
In view of the concession made by the appellant that it was not insured, there is no basis for the submissions with respect to the onus of proof in relation to non-insurance.
The appellant’s primary submission that the “employer” was APM does not raise any onus of proof issue. All of the evidence was before the Senior Member. She determined the issue as a matter of construction of cl 2A of Sch 1 and application of that construction to the facts as she found them.
The Senior Member concluded, in my view correctly, that “APM did not hire Mr Proud’s labour to the [appellant]”.[36] Mr Proud responded to the appellant’s advertisement for a sales assistant. APM did not arrange for Mr Proud to perform work for the appellant. The relationship between the appellant and Mr Proud was direct. Mr Proud responded to the appellant’s advertisement. APM’s role was to assist Mr Proud in finding work by arranging for the subsidy.
[36] Reasons, [552].
The Senior Member also found, again correctly in my view, that the arrangement between the parties was not such as involved APM lending Mr Proud’s services to the appellant. She was correct in her conclusion[37] that for there to be a labour hire arrangement there needed to be a payment from the appellant to APM for the service. So far as the evidence established, there was no circumstance in which the appellant would make a payment to APM.
[37] Reasons, [553].
Finally, the respondent is correct in its submission that APM did not provide services during the performance of the work by Mr Proud.
The Senior Member was correct, the appellant was Mr Proud’s employer. It did not have a policy of insurance in accordance with s 155 of the 1987 Act. It was uninsured.
Ground A of the appeal is dismissed.

GROUND B – ERRED IN LAW AND JURISDICTIONAL ERROR IN DRAWING AN INFERENCE OF INJURY, EMPLOYMENT AS A SUBSTANTIAL CONTRIBUTING FACTOR IN INCAPACITY WHEN THERE WAS NO EVIDENCE OR INSUFFICIENT EVIDENCE TO DO SO

Appellant’s submissions

I have some difficulty understanding paragraphs [32]–[33] of the appellant’s submissions.
The substance of the appellant’s submissions with respect to this ground of appeal is in paragraphs [34] and [35]:
“The Respondent stood in the shoes of a worker in having to prove the elements under the legislation to recover compensation. The absence of an expert medical opinion on injury [and] employment as a substantial contributing factor and incapacity was a lacuna in the Respondent’s evidentiary case which could not be cured through reliance on a bare [ipse dixit] of medical treaters and in particular a capacity certificate issued under s 44B [of the 1998 Act].
The medical evidence on injury in the Respondent’s case was limited to treating medical providers providing treatment for a work injury. This was, on the evidence, against a history of Mr Proud suffering from a myriad of co-morbidities including rheumatoid arthritis and constitutional osteopenia resulting in past fractures and unrelated to occupational stress.”
Later the appellant submits:
“As such the medical evidence could not even establish in terms of scientific causation that it was possible before the Member could proceed to consider that possibility with other evidence on the balance of probabilities.
…
In the Appellant’s submission the Respondent’s case failed in establishing ‘injury’ which relied on conflating the temporal co-incidence of complaint while at the Appellant’s premises with causal nexus.
The extent of the evidence is a treatment report from Dr Konidaris dated 11‑06-2021 which does not address causation. …
This evidence assumes the very fact in issue and there is no foundation established for that assumption on the evidence. It is not probative or cogent of the fact in issue of whether there was an ‘injury’ for the purposes of s 4 or s 9A [of the] 1987 Act.
This evidence does not satisfy that as a matter of scientific possibility any of the myriad of scenarios and possibilities posited as to the mechanism of injury would cause the injury.”[38]
[38] Appellant’s submissions, [2.3.41]–[2.3.46].
Later the appellant submits:
“Evidence of treating doctors will always be admissible if admitted for a purpose of evidencing attendances and treatment. However, they are not admissible for all, purposes principally expert opinion, unless they satisfy the well-established principles relating to an expert opinion.
This is because to express an opinion or any conclusion the foundation for that conclusion must be established in the evidence, otherwise it is not acceptable, it is treated as mere conjecture or speculation. The assumptions must be known to assess the opinion.”[39]
[39] Appellant’s submissions, [2.3.52]–[2.3.53].
The appellant submits that although it did not object to the report of Dr Konidaris as a treatment record, it should have been given little weight because it could not be tested by cross-examination or independently appraised.
The appellant submits that the fact that Dr Konidaris was an expert orthopaedic surgeon did not elevate anything in his report to more than a bare ipse dixit. The appellant says that Dr Konidaris’ evidence did not satisfy the requirements of Makita (Australia) Pty Ltd v Sprowles[40] and the Commission’s Procedural Directions. There was an absence of any identified factual basis for his opinions and the evidence is inadmissible to any issue going to “causation, injury, employment as a substantial contributing fact [sic] and incapacity.”[41]
[40] [2001] NSWCA 305 (Makita).
[41] Appellant’s submissions, [2.3.61].

Further the appellant submitted that the treating doctors’ evidence did not contain an adequate history such that the reports did not contain a “fair climate” for the opinion offered. The appellant cites Paric v John Holland (Constructions) Pty Limited.[42]
[42] [1985] HCA 58; [1984] 2 NSWLR 505; 59 ALJR 844.
To the extent it was admissible it carried no weight in respect of the matters upon which the Senior Member relied upon it.

Respondent’s submissions

The respondent submits that other than a general complaint by the appellant that the Senior Member should not have accepted the medical evidence before her, the submissions made by the appellant do not properly identify a basis upon which the appellant says the Senior Member erred in the way in which she dealt with the medical evidence.
The respondent points out that there is no medical evidence relied upon by the appellant to address the issue of causation or incapacity and the appellant sought to rely on medical literature to support a finding that Mr Proud’s injury and incapacity were not causally related to the claimed work injury.
The respondent points out that at paragraph [55] of its submission, the appellant refers to an x-ray performed on 13 May 2021 but quotes from it inaccurately. The x-ray does not attribute the fracture to disuse osteopenia. The report says that there is evidence of disuse osteopenia together with findings in the tibial plateau consistent with a plateau fracture and soft tissue swelling. “The inconsistency between the evidence and the Appellant’s submission is significant and the Respondent submits, characterises the manner in which the Appellant has sought to identify errors in the Senior Member’s findings without properly setting out the basis for doing so.”[43]
[43] Respondent’s submissions, [28].

Consideration

Dr Konidaris said this in his report of 28 May 2021:
“Michael is a 41-year-old male who sustained a Schatzker 1 lateral tibial plateau fracture while at work on the 24th April. He was 3 days into his work, working as a packer and slipped on a tiled floor injuring his left knee. He presented to Bankstown Hospital where an x-ray was performed but no fractures were identified and an outpatient scan was recommended. Three days later he presented to [the] Emergency Department whereby an MRI scan and CT confirmed a Schatzker 1 tibial plateau fracture with minimal displacement. He was put into a knee range-of-motion brace locked at 30 degrees of flexion and given crutches to mobilise non-weight bearing. His pain persists although slightly better. He is taking Endone for pain and Serepax at night to help him sleep.”[44] (emphasis added)
[44] Application to Admit Late Documents dated 28 March 2023.
Dr Konidaris’ reports were uncontradicted by specialist orthopaedic evidence.
Section 43 of the 2020 Act provides:
“(1)    Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2)     The Commission is not bound by the rules of evidence but may inform itself on any matter in the manner the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3)     The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”
The Personal Injury Commission accordingly is not “bound by the rules of evidence” however the appellant has referred to Makita (Australia) Pty Ltd v Sprowles[45] in support of his submission that no weight should be attached to the evidence of Dr Konidaris.
[45] [2001] NSWCA 305 (Makita).
So far as admissibility is concerned even in evidence based jurisdictions the test for admissibility as stated in Dasreef Pty Limited v Hawchar[46] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) is:
“To be admissible under s 79(1) the evidence that is tendered must satisfy two criteria. The first is that the witness who gives the evidence ‘has specialised knowledge based on the person’s training, study or experience’; the second is that the opinion expressed in evidence by the witness ‘is wholly or substantially based on that knowledge’.”
[46] [2011] HCA 21 (Dasreef), [32].
Furthermore, in both evidenced based and non-evidence based jurisdictions many of the requirements identified in Makita will be assumed or readily inferred where the evidence is that of a medical referee providing an orthodox opinion well within their speciality.
In non-evidenced based jurisdictions an expert’s report will need to conform in a general way to the requirements of an expert’s report in strictly evidenced based jurisdictions but the issue is not so much admissibility as the weight to be attached to the opinion.[47]
[47] Hancock v East Coast Timber Products Pty Limited [2011] NSWCA 11, [82], [83].
Dr Konidaris’ reports plainly satisfied the requirements for admissibility as “expert evidence”; he had “specialised knowledge” on which his opinion was “wholly or substantially based”. Any doubt as to the Senior Member’s reliance on such evidence is resolved by s 43.
Dr Konidaris’ opinion was based on the factual evidence as found by the Senior Member.
The scientific articles tendered by the appellant do not contradict Dr Konidaris’ conclusion that the fracture was caused by the injury at work.
The Senior Member was entitled to rely upon Dr Konidaris, together with the evidence in the Discharge Summary from the Bankstown Lidcombe Hospital, which likewise was uncontradicted, to reach the conclusion that Mr Proud suffered a Schatzker 1 lateral tibial plateau fracture in the course of his employment with the appellant.
The appellant’s submission that a treating orthopaedic specialist’s opinion evidence should be given no weight and should not be relied upon as expert evidence is contradicted by s 43 of the 2020 Act and by the statement of principle contained in Dasreef. There is no error on the part of the Senior Member in relying on the uncontradicted evidence of Dr Konidaris.
On the evidence available to the Senior Member, not only was employment a substantial contributing factor but it was the only contributing factor. The underlying condition of osteopenia was not implicated in the cause of the fracture on the accepted orthopaedic evidence. The x-ray of 13 May 2021[48] suggested a history of osteopenia. It did not provide evidence that the fracture was spontaneous because of the underlying condition of osteopenia.
[48] Reply to Miscellaneous Application, p 55.
Notwithstanding s 43, in the absence of expert explication by a medical witness the Senior Member would not be entitled to act upon the scientific articles. Unless the scientific information contained in the articles is the subject of explication by a properly qualified medical witness, the Senior Member does not have the expertise to interpret and draw conclusions unaided from the scientific discourse.[49]
[49] See the discussion of these issues in Strinic v Singh [2009] NSWCA 15; 74 NSWLR 419, [57]–[65].
Ground B of the appeal is rejected.

GROUND C – ERRORS OF LAW DRAWING INFERENCES FAVOURABLE TO THE RESPONDENT WHERE THEY WERE NOT OPEN ON THE EVIDENCE TO MAKE A FINDING OF WORKER

Appellant’s submissions

The appellant submits that the respondent carried the onus of establishing a contract of service between Mr Proud and the appellant.
Mr Proud could not give evidence about the terms that were discussed. There was no evidence from APM other than the documents produced under a direction. The documents confirmed that no legal relations were established between APM on behalf of Mr Proud and the appellant or between APM and the appellant.
The appellant submits that no inference could be drawn by the Senior Member that what had been interpreted to Mr Rahman was consistent with the respondent’s contention of employment by the appellant. Such inference if drawn was contrary to Mr Rahman’s statement as to his understanding, knowledge and motivation.
The appellant argues there was no evidence inconsistent with Mr Rahman’s evidence. The interpreter was not called. In the absence of evidence from the interpreter to dispute Mr Rahman’s evidence, a finding adverse to the appellant that an admission had been made was not supported by evidence.
The evidence of Mr Rahman did not have to be accepted but it could not be impugned on the basis that an interpreter had been used when the fact in issue was whether the statement adequately conveyed what was said. The appellant submits the adverse inference was not open to be drawn given the evidence was not challenged by the only person who could, the interpreter.[50]
[50] Citing Commercial Union Insurance Co Australia Limited v Ferrcom Pty Limited (1991) 22 NSWLR 389.
The inference open was that the unexplained failure to advance evidence on the issue of the interpreter gave rise to a Jones v Dunkel[51] inference that such evidence would not have supported the Senior Member’s finding that the use of the expression “employment” did not reflect the meaning conveyed by Mr Rahman. Mr Rahman’s evidence was unchallenged and the Senior Member could not draw on any expertise in the Bengali language and have any basis upon which to challenge the evidence on a matter which required expertise.
[51] [1959] HCA 8; 101 CLR 298.

Respondent’s submissions

The respondent submits that the Senior Member analysed the evidence of Mr Rahman in his first statement at paragraphs [537] to [550] of the reasons. The Senior Member made findings about the process by which the factual investigator, Ms Pont, took the statement from Mr Rahman. The Senior Member also made findings about the likelihood of confusion or lack of understanding by Mr Rahman when providing the statement on the background of his history. Those findings were plainly open to the Senior Member on the evidence and disclosed no error.
The assertion by the appellant that Mr Rahman’s evidence was unchallenged misunderstands the conflict in the evidence. The evidence of Mr Rahman about the asserted unfairness and circumstances of taking the first statement was clearly challenged by the evidence of Ms Pont. However, the inconsistencies between the first statement made by Mr Rahman and his later evidence, prepared as it was through the lens of having to meet a claim for repayment to the Nominal Insurer, raised issues with the credibility of the evidence which the Senior Member was entitled to take into account in assessing the evidence before the Commission.

Consideration

The respondent’s submissions are, with respect, correct. Mr Rahman gave two statements, the second contradicting the first or at least seeking to provide a different connotation to what was said in the first. The Senior Member had before her the evidence of Ms Pont which she accepted.[52]
[52] Reasons, [540].
The Senior Member, furthermore, specifically said:
“I do not accept that, with the assistance of the interpreter, Mr Rahman was not able to convey in his statement the difference between a person carrying out jobs, but not necessarily through a contract of employment, and an employee.
Mr Rahman’s evidence is that he advertised the job on Gumtree; he had always found help through word of mouth; he had in the past recruited by placing ads, to which he often received responses from overseas students; he regularly had Centrelink recipients apply; he started people on casual positions, and sometimes made them permanent part-time employees; and his preference was to advertise and recruit people actively looking for work, rather than go through an agency.
Mr Rahman was clearly experienced in employing people …”.[53]
[53] Reasons, [545]–[547].
The Senior Member did not commit error in accepting and preferring the evidence given by Mr Rahman in his first statement. She explained why she preferred this evidence. It was corroborated by the objective surrounding circumstances as to the engagement and employment of Mr Proud. She accepted the evidence as to how Ms Pont conducted the interview and obtained the statement. She did not accept Mr Rahman’s contrary interpretation.
Ground C of the appeal is rejected and dismissed.

GROUND D – ERROR OF LAW AND JURISDICTIONAL ERROR IN RELIANCE ON THE REPORT OF DR KONIDARIS FOR AN EXPERT PURPOSE AND A DENIAL OF PROCEDURAL FAIRNESS

Appellant’s submissions

The appellant submits there was no expert evidence on causation, which the Senior Member resolved through application of common sense and expert opinion of Dr Konidaris.
The appellant submits that it was denied procedural fairness in not knowing and still not knowing which party bore the legal persuasive onus and/or evidentiary onus and in respect of what issues.
Moreover, given the absence of evidence being represented as expert evidence and complying with the Commission’s Procedural Directions, it was not open for the Senior Member to rely on that evidence for expert purpose without first informing the parties of that intention and enabling the parties to respond.
Finally, if the Senior Member was to apply a commonsense application drawn from common knowledge in resolving the issues of causation, injury, employment as a substantial contributing factor and incapacity then this was a matter that the parties ought to have been informed of as it was not apparent that it was open through the reliance on the records of treating doctors alone.

Respondent’s submissions

The respondent submits that Dr Konidaris’ report dated 11 June 2021 was included in the respondent’s Reply. No objection was taken by the appellant to the report of Dr Konidaris being admitted into evidence. Given those matters, it is simply not open to the appellant to complain about the consideration given to Dr Konidaris’ medical opinion by the Senior Member.
The issue of injury causation reveals a misconception of the nature of the evidence of Dr Konidaris set out in his report. It hardly needs stating the opinion of a treating orthopaedic surgeon is expert evidence that can and should have been given appropriate weight, particularly in the absence of a competing medical case.

Consideration

I have expressed my views with respect to the expert report of Dr Konidaris in the reasons for rejecting Ground B of the appeal (above).
The Senior Member’s use of the reports of Dr Konidaris and the other medical evidence does not exhibit error.
Furthermore, there is no denial of procedural fairness in circumstances where the appellant chose to contest the medical issues in the matter on the basis of the tender of scientific articles which, though read and acknowledged by the Senior Member, did not contradict the conclusions derived by her from the reports of Dr Konidaris. There was no contradictory evidence.
The appellant was plainly seized of the necessity to obtain medical evidence. That it chose to proceed in the manner in which it did does not demonstrate a failure to provide procedural fairness by the Senior Member.
Ground D of the appeal is rejected.

GROUND E – ERROR OF LAW – JURISDICTIONAL ERROR – NO EVIDENCE (INSUFFICIENT EVIDENCE) OF INCAPACITY AND FAILURE TO ENGAGE IN THE EVIDENCE RELIED UPON

Appellant’s submissions

The appellant submits that even on the respondent’s best case the expert evidence which the respondent and the Senior Member relied upon was “spent” in around 12 weeks after which Mr Proud is discharged. The restrictions, however, imposed on Mr Proud’s activities having suffered an un-displaced fracture extend to lifting, carrying, standing, pushing, etc.
The appellant submitted that Mr Proud was reluctant to use public transport to travel distances, although employment offered was within his physical limits. The absence of expert medical opinion on incapacity is a lacuna that is fatal in the appellant’s submission and did not allow for any considered assessment of whether the compensation paid was done so in accordance with the legislation.
The appellant’s submissions detailed inconsistency between objective facts from medical notes and the histories given to the rehabilitation providers. The extent of the correlation between those facts and the assumptions on which the compensation for incapacity was based adds to the weight to be afforded the evidence of ongoing incapacity upon which the Senior Member relied.

Respondent’s submissions

The respondent says that this ground of the appellant’s appeal is difficult to understand. It amounts to no more than a complaint that the Senior Member did not accept the submissions made by the appellant at first instance. The appellant has failed to properly identify any error by the Senior Member.

Consideration

I accept the respondent’s submission that this ground of appeal as explicated in the submissions is nothing more than a complaint that the Senior Member did not accept the appellant’s submissions.
Furthermore, even on the basis of the appellant’s submissions on the appeal, “[t]he extent of the correlation, between those facts and the assumptions on which the compensation for incapacity was based, goes to the weight to be afforded to the evidence of ongoing incapacity upon which the Senior Member relied.”[54] That is in itself a concession that, subject to weight, the conclusion drawn by the Senior Member was open.
[54] Appellant’s submissions, [2.3.76].
The Senior Member said on this point that Mr Proud’s Certificates of Capacity recorded his capacity for work. The certificates were certified by appropriately qualified persons. Mr Proud cooperated with the rehabilitation management consultant, provided a weekly job log and was limited to using public transport. That was a factor in his ability to obtain employment.
There is no error in the approach adopted by the Senior Member.
Ground E of the appeal is rejected.

GROUND F – ERROR IN LAW AND JURISDICTIONAL ERROR – FAILURE TO AFFORD PROCEDURAL FAIRNESS

Appellant’s supplementary submissions

The appellant in the supplementary submissions adds Ground F – failure to afford procedural fairness. [I note that there is no application to add this ground of Appeal out of time or to make submissions in support of it.]
The appellant refers to submissions and rulings relating to the legal onus made to and by the Senior Member in the context of procedural directions made in circumstances where there is no recording or transcript.
The appellant submits that it was adversely affected through the Senior Member not informing the parties that the Senior Member did not consider Procedural Direction PIC4 – Expert witness evidence (or for that matter the Makita common law requirements for expert evidence) to apply when considering the determination of injury, substantial contributing factor or capacity.
The appellant said that it framed its case and the evidence on established Presidential authority about the admission of and weight to be given to inadmissible non-compliant expert opinion.
The appellant submits that:
“(a)    The Member construed a discretion to dispense with compliance without notice to a party affected to find the professional qualification of a witness (in this case orthopaedic surgeon) satisfied of itself the elevation of lay treatment evidence to the status of expert opinion and admissible for that purpose. This adversely affected the [appellant] and material may have resulted in a different outcome;
(b)     Failing to give notice to an affected party that treating lay evidence would be admissible as expert evidence notwithstanding the [quoted] authority. … This adversely affected the [appellant] and material and may have resulted in a different outcome.
(c)     Failing to give notice to an affected party of the Member’s determination that the Member would rely upon the Member’s own knowledge to determine causation and injury in the absence of expert evidence where the mechanism of injury in issue and involving an unusual condition. … The determination that the Member proposed to determine causation and injury in the absence of expert evidence was a matter the parties ought to have been heard on and adversely affected the [appellant] and material and may have resulted in a different outcome;
(d)     In determining ongoing incapacity on Work Capacity Certificates alone failed to have regard to the authority in McCabe Terrill Lawyers v A [2009] NSWWCCPD 46. …
(e)     Failing to give notice to an affected party that treating lay evidence would be admissible as expert evidence notwithstanding the authority in [Conargo Shire Council v Quor [2007] NSWWCCPD 245] and determining ongoing incapacity on Certificates alone notwithstanding the authority in Greif Australia Pty Limited v Ahmed [2007] NSWWCCPD 195.”[55]
[55] Appellant’s supplementary submissions 7 August 2023, [17].

Respondent’s response to the appellant’s supplementary submissions

The respondent says that the supplementary submissions have been served out of time and that no leave has been granted for the Commission to consider them.
The respondent does not agree that there were, as the appellant asserts, further submissions made on the legal onus while directions were being made by the Senior Member. More importantly, the appellant has failed to identify what findings the Senior Member is said to have made based on those asserted discussions.
It is noted that no issue of lack of procedural fairness about matters not recorded when setting the timetable for lodgement and service of the written submissions by the parties was raised by counsel for the appellant in his written submission. As those submissions were prepared, lodged and served after the directions for a timetable was made by the Senior Member, it would clearly have been open to him to do so had there been any procedural unfairness. That was not done. It is also noted the appellant’s submissions have not been prepared by counsel who was briefed by the appellant at the hearing. For those reasons the appellant’s supplementary submissions should be rejected.

Consideration

Although there is no application for leave to add and rely on this ground of appeal, and further no leave has been granted to make submissions in support of it, I propose to rely on r 6 of the 2021 Rules and grant leave to rely on Ground F as both the appellant and the respondent have provided submissions in support of this ground of appeal.
Plainly no ruling on appeal can be made where there is no evidence as to what rulings, if any, the Senior Member made during the course of setting the procedural timetable.
Furthermore, the appellant’s supplementary submissions purport to quote submissions made by counsel for the appellant which are not recorded and which, if they were to be relied upon, should have been provided in evidence from counsel for the appellant.
So far as the substantial complaint made in the appellant’s supplementary submissions is concerned, I have previously indicated my view that no error is demonstrated by the Senior Member’s reliance on the expert evidence contained in Dr Konidaris’ reports.
The evidence was before the Commission without objection. The appellant chose to deal with the medical evidence by tendering scientific articles rather than obtaining contrary medical evidence if available. The appellant has not been denied procedural fairness in the manner in which the Senior Member dealt with the medical evidence which was neither unusual or unorthodox.
The supplementary ground of appeal F with respect to alleged failure to provide procedural fairness is rejected.

CONCLUSION

For the reasons advanced, the appeal is dismissed and the determination of the Senior Member confirmed.

DECISION

The Senior Member’s Certificate of Determination dated 20 June 2023 is confirmed.

Geoffrey Parker SC
ACTING DEPUTY PRESIDENT

8 May 2024