Paul Segaert Pty Limited t/as Lidco v Narayan
[2006] NSWWCCPD 296
•6 November 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Paul Segaert Pty Limited t/as Lidco v Narayan [2006] NSWWCCPD 296
APPELLANT: Paul Segaert Pty Limited t/as Lidco
RESPONDENT: Kuldip Narayan
INSURER:Employers Mutual Indemnity (Workers Compensation) Limited
FILE NUMBER: WCC3997-05
DATE OF ARBITRATOR’S DECISION: 4 July 2005
DATE OF APPEAL DECISION: 6 November 2006
SUBJECT MATTER OF DECISION: Apprehended bias; procedural fairness; natural justice; section 354(2) of the Workplace Injury Management and Workers Compensation Act 1998; Part 15 Rule 15.2 Workers Compensation Commission Rules 2006 (formerly Rule 70 Workers Compensation Commission Rules 2003); right of the Commission to inform itself on any matter.
PRESIDENTIAL MEMBER: Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: McCulloch & Buggy
Respondent: Taylor & Scott
ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 4 July 2005 is confirmed.
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
BACKGROUND TO THE APPEAL
On 27 July 2005 Paul Segaaert Pty Limited t/as Lidco (‘the Appellant Employer/Lidco’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 4 July 2005.
The Respondent to the Appeal is Kuldip Narayan (‘the Respondent Worker/Mr Narayan’).
Mr Narayan was born in Fiji on 8 March 1968. In Fiji he worked as a salesman for three years and immigrated to Australia in 1989. In Australia he has worked mainly in process work, first with H H Pistons and then with G James Glazing and Fabrication. In or about 1999 he started work with the Appellant Employer. His duties required him to work on a production line and add fixtures to aluminium frames. To perform his duties he was provided with air driven power drills, screwdrivers and other hand tools. He would occasionally use tools that would vibrate (Dr Truskett, report 13 November 2003, page one). Dr Wallace described his duties as requiring “repetitive use of air powered hand tools and prolonged periods of manual handling of material” (report, 22 October 2004).
In September/October 2003 Mr Narayan developed pain in his dominant right wrist and hand radiating to his forearm, upper arm and right shoulder. He also noticed paraesthesia and numbness in the thumb, index and middle fingers of his right hand. He believed the symptoms were the result of his work duties. He attended on Lidco’s doctor, Dr Tan, on 8 October 2003 and on his own general practitioner, Dr Muthukrishnan, on 22 October 2003. Nerve conduction studies performed on 17 October 2003 showed bilateral evidence of carpal tunnel syndrome, worse on the right side. At about that time Mr Narayan noticed increasing pain in his left wrist and paraesthesia involving the median fingers of the left hand.
He was referred to a specialist hand surgeon, Dr Edinburgh, who performed a right carpal tunnel release on 23 December 2003. Mr Narayan was off work from 28 October 2003 to 27 January 2004 when he returned to work on light duties until 13 February 2004 when he resumed his full pre injury duties. He was paid voluntary weekly compensation for the period up to 4 November 2003.
On 16 March 2005 an Application to Resolve a Dispute (‘the Application’) was filed in the Commission seeking weekly compensation from 28 October 2003 until 29 February 2004 and medical expenses under section 60 of the Workers Compensation Act 1987 (‘the 1987 Act’). The claim for weekly compensation was ultimately amended to be for $763.84 per week from 5 November 2003 to 28 January 2004 and in the sum of $159.17 per week from 29 January to 29 February 2004.
By its Reply filed on 5 April 2005 the Appellant Employer listed the following issues as being in dispute:
· whether or not the Respondent Worker’s employment was a substantial contributing factor to his condition;
· whether or not the Respondent Worker’s condition was work related;
· whether or not the Respondent Worker suffered any injury arising out of or in the course of his employment with the Appellant Employer;
· the extent of any whole person impairment suffered by the Respondent Worker, and
· whether or not the Respondent Worker’s condition had stabilised.
The matter was listed for conciliation and arbitration before a Commission Arbitrator on 8 June 2005 when certain discussions took place. The proceedings on 8 June 2005 did not progress beyond the conciliation stage and, as a result, there is no transcript of what was said on that day. The claim in respect of Mr Narayan’s left arm was not pressed because it had not properly stabilised after recent surgery. Exactly what was said by the Arbitrator at the conciliation conference is the subject of dispute and is dealt with in detail below. It is clear however that a discussion took place about the cause of carpal tunnel syndrome.
As a result of the conciliation proceedings on 8 June 2005 the Commission issued a Direction to the parties on 9 June 2005 in the following terms:
“1.This matter is adjourned to an arbitration conference scheduled for 1 PM Wednesday, 29 June 2005, at the offices of the Workers Compensation Commission, Level 21, 1 Oxford Street, Sydney.
2.The Arbitrator agreed to provide to the solicitors for the parties by 10 June 2005 copies of material on which he intended to base his decision with respect to the Applicant’s claim that his carpal tunnel syndrome was related to his work with the Respondent, being:
a. The U.S. Department of Health and Human Services, National Institute
of Occupational Safety and Health (NIOSH) report into Musculoskeletal Disorders (MSDs) and Workplace Factors, July 1997;
b. Clinical Evaluation and Management of Work-Related Carpal Tunnel
Syndrome from the American Journal of Industrial Medicine, 2000.
To be sent by DX to:
Mr Ray McClenahan of Taylor & Scott, DX 28313 Parramatta, and
Mr Mark Siebold, McCulloch & Buggy, DX 13126 Sydney Market Street
3.The Applicant has leave to file in these proceedings the late wage and medical expenses schedules, dated 6 June 2005.
4.The Respondent has leave to file material concerning wages and medical expenses in reply, within 14 days.
5.The Applicant has leave to file in the Commission to be served on the Respondent within 7 days, the medical report of Dr Collins, dated 22 March 2005. The determination as to whether the report will be allowed into these proceedings will be made at the adjourned arbitration conference.
6.The Respondent has leave to file:
a. Material in response to the carpal tunnel reports provided;
b. A supplementary report dealing with any matters raised in the report of
Dr Collins,
on or before Friday 24 June 2005. The admissibility of this material will be determined at the adjourned arbitration hearing.”
For convenience I will refer to the articles set out in paragraph two (a) and (b) of the above Direction as ‘the disputed articles’.
At the Arbitration hearing on 29 June 2005 the solicitor appearing for the Appellant Employer (who had not appeared on 8 June 2005) made an application that the Arbitrator disqualify himself on the grounds of “perceived bias and/or…a breach of procedural fairness” (transcript, page one line 33). The Arbitrator heard submissions from both parties on that application and refused to disqualify himself and the matter proceeded to conclusion with the Arbitrator, in an ex tempore decision, making a determination in favour of the Respondent Worker.
The Appellant Employer seeks leave to appeal the decision by the Arbitrator to refuse to disqualify himself.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The quantum of compensation “in issue” on the appeal is in excess of $5,000.00 and therefore the threshold in section 352(2)(a) of the 1998 Act is satisfied. If the appeal succeeds the orders made in favour of the Respondent Worker will be set aside and the matter re-determined, either by me on review or by a different Arbitrator on a rehearing. Therefore, the whole of the amount of compensation is “at issue” on appeal and the test in section 352(2)(b) is also satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Merit
The Respondent Worker submits that notwithstanding that the thresholds in section 352(2) have been satisfied, leave to appeal should be refused as the appeal has little merit and to allow leave would be contrary to the objectives of the Commission set out in section 367 of the 1998 Act to reduce administration costs across the workers compensation system (section 367(1)(b)).
Provided the relevant appeal has been lodged within the time limits set out in section 352(4) and the monetary thresholds in 352)2) are satisfied, leave to appeal will normally be granted. The merits of the appeal do not determine whether leave to appeal is granted but may be relevant in determining whether to extend time in which to appeal.
The appeal in the present case was lodged within time and the monetary thresholds are satisfied.
I grant leave to appeal.
PRELIMINARY MATTERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Both parties seek an oral hearing of the appeal. The Appellant Employer submits that given the nature of the issues involved and the lack of a transcript at the time its submissions were prepared, oral submissions should be allowed. The transcript of the Arbitration proceedings on 29 June 2005 was forwarded to the parties on 10 August 2005. Since 10 August 2005 the only additional submissions received from the Appellant Employer have been in a letter dated 1 August 2006 referring to Antoun v The Queen [2006] HCA 2 (‘Antoun’) and to a note taken by Mr McDiarmid, solicitor, concerning the discussion which allegedly took place at the conciliation on 8 June 2005. No reference has been made to the transcript of the proceedings on 29 June 2005.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, 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.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 4 July 2005, records the Arbitrator’s orders as follows:
“In respect of Permanent Impairment:
1.The Applicant’s claim for compensation for whole person impairment, pursuant to s66 of the Workers Compensation Act 1987, as a result of Carpal Tunnel Syndrome in his right wrist which I have found was substantially caused by his employment, is referred to an AMS, to be selected by the Registrar, for assessment.
In respect of Medical Expenses:
2.The Respondent is to pay the Applicant’s medical costs pursuant to s60 of the Workers Compensation Act 1987 incurred to date, in the sum of $3,116.45 as per the Applicant’s medical expenses schedule, dated 2/6/2005.
In respect of Weekly Benefits:
3.The Respondent is to pay the Applicant weekly compensation for two closed periods:
a)Pursuant to s36 of the Workers Compensation Act 1987 for the period from 5/11/2003 to 28/1/04, at the rate of $763.84 gross per week;
b)Pursuant to s40 of the Workers Compensation Act 1987 for the period from 29/1/2004 to 29/2/04, at the rate of $159.17 gross per week.
4.I determine that this matter, which went directly to Arbitration, was a
complex matter as provided for by Regulation 129 of the Workers
Compensation (General) Amendment (Costs) Regulation 2001.
5.The Respondent is to pay the Applicant’s costs as agreed or assessed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether the Arbitrator:
(a)breached the Arbitrator’s Code of Conduct by forming a view in relation to the claim, as demonstrated by his introducing “studies” which supported the Respondent Worker’s claim;
(b)was guilty of apprehended bias by indicating on 8 June 2005 that he did not accept the Appellant Employer’s medical evidence and by introducing the “studies” which supported the Respondent Worker’s claim;
(c)should have disqualified himself from hearing the case when asked to do so by the Appellant Employer’s solicitor on 29 June 2005, and
(d)denied the Appellant Employer procedural fairness and natural justice.
FRESH EVIDENCE
Neither party seeks to introduce fresh evidence on appeal.
SUBMISSIONS AND FINDINGS
The Proceedings Before The Arbitrator
In the present case the Appellant Employer argues that at the conciliation stage of the proceedings on 8 June 2005 the Arbitrator said certain things which raise an issue of apprehended bias and procedural fairness. It is alleged that the Arbitrator “indicated that he did not accept the medical evidence annexed to the employer’s Reply” (Appellant Employer’s submissions, paragraph five). This point is made again in a letter dated 1 August 2006 from the Appellant Employer’s solicitor to the Commission in which it is stated that the Arbitrator “clearly prejudiced the issue”. In the same letter reference is made to a “note from our Mr McDiarmid” about the discussions which took place at the conciliation on 8 June 2005. The note reads:
“Discussion of medical evidence re whether workplace injury – arb says he thinks Stapleton and Truskett are wrong – he has done his own reading on carpal tunnel injury – has studies in his chambers.”
The reference to “Stapleton and Truskett” is a reference to Drs Stapleton and Truskett, the two medical specialists retained by the Appellant Employer to examine and report on Mr Narayan for the purposes of the current claim.
Dr Truskett examined Mr Narayan on 10 November 2003 and reported on 13 November 2003. In his opinion Mr Narayan’s history and signs, in combination with his EMG, suggested the diagnosis of carpal tunnel syndrome. He added at page five of his report that:
“Carpal tunnel syndrome may be the result of direct trauma to the wrist. There is no such history of trauma on this occasion.
Carpal tunnel syndrome is a constitutional disorder and in the absence of direct trauma, is not work related.”
Dr Stapleton reported on 29 October 2003 and again on 17 June 2005. In his first report he stated at page two:
“This gentleman has worked as an aluminium fabricator for four years full time. I note from your instruction that this gentleman alleges that he has been injured because of the repetitive use of the air driven hand tools. I would point out that carpal tunnel syndrome is not an injury. It is a constitutional problem brought about by a space inadequacy at the wrist through which the median nerve passes. Most who suffer from the condition are menopausal women, half of whom do not work at all. If it was related to hard work, or indeed if it was related, to quote the specifics, [to] repetitive use of hand tools, then I would expect the dominant hand to be the only hand affected and that is not the case in this man. Furthermore, I would expect the majority of people who use hand air driven tools to suffer from the condition, if such a tool was injurious. Such is patently not the case. It, for many years, was regarded as a condition that was related to repetitive use of the fingers, but that has long since been discounted. There is no evidence that draws attention to the fact that this is a work-related injury.”
In his report of 17 June 2005 Dr Stapleton stated, without referring to the disputed articles, that his opinion was “held as strongly now as it was when I saw Mr Narayan last and that this condition has nothing whatsoever to do with his occupation” (page five).
The Respondent Worker’s legal adviser was present at the conciliation on 8 June 2005 and challenges the assertions made in the Appellant Employer’s submissions as to what the Arbitrator said on that day. He states at paragraph 14 of his submissions that:
“In the arbitration of 8 June 2005 the arbitrator did not simply state that he ‘did not accept’ the medical evidence annexed to the employer’s reply. Rather the Arbitrator indicated that he was of the tentative view that the situation was most likely more complex than the rather black and white arguments for and against work being a substantial contributing factor towards the worker’s carpal tunnel syndrome than was expressed in the parties’ competing medical opinions.”
When the matter came on for further hearing on 29 June 2005 the Appellant Employer was represented by Mr Stiles who made an application that the Arbitrator disqualify himself on the basis of “perceived bias and/or…a breach of procedural fairness”. The basis of this application was not that the Arbitrator had previously said that Drs Stapleton and Truskett were wrong but on an entirely different basis. Mr Stiles said at page one line 24 of the transcript:
“MR STILES: Mr Arbitrator, I’m instructed that as a result of the information that has been sent to us from you, that being the ‘Musculoskeletal Disorders and Workplace Factors’ material, together with an American Journal of Industrial Medicine, article ‘Clinical evaluation and management of work-related carpal tunnel syndrome’, on the basis of that material, the way it has come into being involved in this case, my application is that you disqualify yourself from further hearing the matter on the basis of a perceived bias and/or, I guess, a breach of procedural fairness ideals which the Commission seeks to achieve and, in particular, the Arbitrator’s Code of Conduct which is issued by the Workers Compensation Commission.” (emphasis added)
Mr Stiles then referred the Arbitrator to the Code of Conduct and added at page two line three:
“The respondent says that in terms of these reports now being brought into play, so to speak, it does demonstrate that at the very least you have obviously contemplated issues in relation to work-related carpal tunnel syndrome and carpal tunnel syndrome’s relationship to work.
This is something that was not adduced at all by the applicant or the applicant’s solicitors or counsel in the application or in any Application to Admit Late Documents. The documents have only come into being, into play, so to speak, because of your introduction of them. They are obviously focused, having reviewed them, to an understanding of carpal tunnel syndrome and its relationship to work being in a way that seems to, on my reading of them at the very least, show that there is a link between work occupation and carpal tunnel syndrome.
The reports were not referred to by the applicant prior to this time and, as such, we would say that it has: (a) impacted in some way upon your views in relation to the matter and could be perceived to be an impact on your ultimate findings in relation to the matter and, as such, we would ask that you disqualify yourself. I don’t think there’s much more I wish to say, anyway, at this stage.”
The Arbitrator then drew Mr Stiles’ attention to the provisions of section 345(2) of the 1998 Act (set out below at paragraph 62) and to the disputed articles and added at page three line seven:
“I think, firstly, one needs to consider the status of those documents and whether they are documents that a tribunal or court could look to to provide assistance in relation to understanding the advent, cause of carpal tunnel syndrome. Secondly, the reason I provided them and the reason - well, certainly I raised them because they have been documents that I’ve dealt with previously in this Commission. So I had read and dealt with those reports as part of hearings I’ve done into other matters of carpal tunnel syndrome. So they have been before me and they are reports that were known to me and the findings were findings that I was aware of.
So I had provided them to the parties on the basis that it would have been a breach of natural justice, I think, to have those reports in my mind and not allow the parties to, firstly, have the benefit of reading them; secondly, to seek from their own doctors, which was one of the - the nature of the direction I made, seek from their own doctors their doctors’ views of those reports so that it was an informed view that could be provided, and adjourn the matter to allow the parties to read those reports, obtain any advice from the treating doctors that they sought and to provide those and their own submissions at this hearing so that if I had misinformed myself in relation to those reports, that that could be corrected. I thought that was possibly acting in the fairest possible way.”
The Arbitrator then referred to and quoted from part of the Direction made on 9 June 2005 and added that the Appellant Employer had leave to file “material in response to the carpal tunnel reports provided” (transcript, page three line 57). The Arbitrator’s reference to “the carpal tunnel reports” is a reference to the disputed articles.
Mr Shoebridge then submitted that the course adopted on 8 June 2005 was adopted to afford natural justice and procedural fairness to both parties. He also made the point that the course adopted was adopted “with the consent of both parties at the previous arbitration” (transcript, page four line 51). This assertion was not challenged by Mr Stiles before the Arbitrator and has not been challenged on appeal.
Mr Stiles then made further submissions. He added that the reference in the Direction on 9 June 2005 to the disputed articles being “material on which he intends to base his decision with respect to the Applicant’s claim” indicated that the material was:
“…obviously something that you’ve reflected on and have knowledge of and intend to rely upon is something which causes the respondent some concern in terms of a bias or a preconceived bias kind of way. The difficulty is that these reports or papers are overall global studies. They aren’t to do with – they’re not focused on this particular case.
The way that we would submit that you should determine this matter is based on the medical evidence that is adduced by the applicant in its case and then the reply by the respondent and, having regard to those reports, make your decision.
Sifting through journals of which there could be numerous similar type papers doesn’t really assist you in coming to a decision in relation to this particular matter and, again, the critical submission is that by you having referred to it and then introduced it into the proceedings, it’s really our additional evidence which supports the plaintiff’s [sic] position and the respondent is left with, I suppose, a bitter taste in its mouth in that it, at the very least, perceives your position to be swayed by those reports. I don't think there’s anything else I will say at this point.”
At page six line 48 of the transcript Mr Stiles reiterated his point that the disputed articles “were never brought into these proceedings by the applicant” and that they should not be “introduced into these proceedings because they’re really outside the scope of what allows you to determine this particular case” (transcript, page six line 53).
The Arbitrator made reference to the Commission’s “investigative” role (transcript, page seven line seven) to which Mr Stiles submitted that by informing himself with the disputed articles a reasonable bystander would perceive “some kind of bias” in the Arbitrator’s views (transcript, page seven line 30).
The Arbitrator then gave short reasons in which he rejected Mr Stiles’ application that he disqualify himself for bias. In those reasons he confirmed that Mr McDiarmid did not oppose the Directions made on 9 June 2005. He then added at page seven line 43:
“However, I think the significant thing for me in this matter is as follows. The issues in this matter, I think, are twofold. One is the nature of carpal tunnel syndrome and how people acquire it, if I could put it that way, and, secondly, the particular circumstances of this applicant, his work history and his medical situation and his constitutional situation.”
After referring to the opinions of Drs Stapleton and Truskett the Arbitrator commented on the disputed articles at page eight line 41:
“The reports that I provided constitute material that I have read in the course of my work in this Tribunal and in the course of dealing with matters of carpal tunnel syndrome. As opposed to the very black-and-white views of the respondent’s doctors, they propose a different scenario, namely, that rather than it being a yes-or-no case, namely, could the applicant have work-related carpal tunnel syndrome, yes or no, their view is no, because it’s a constitutional condition.
Those reports indicate that carpal tunnel syndrome, or the cause of carpal tunnel syndrome, cover more of a spectrum, and it’s that fact which was pressing on my mind, namely, that there are conditions at each end of the spectrum where one can say that that person simply could not have acquired the condition other than through a constitutional or genetic basis.
On the other end of the spectrum, those reports appear to indicate that there are certain types of activities, and those activities are described in those reports as activities of the type where there is forceful and repetitive use of the hands as well as the use of tools that transmit vibration to the hands and arms, and also possibly constitutional factors as well, but certainly where there are those types of activities, workplace activities, being performed, then those reports would indicate that carpal tunnel syndrome can well be caused by that type of activity. Those reports really only discuss the general background.”
Dealing with the Respondent Worker’s situation the Arbitrator said at page nine line four:
“In relation to Mr Narayan’s situation, however, where he places on that continuum, on that spectrum, is a matter of evidence and submission. He may fit into that group on one end of the spectrum where his carpal tunnel syndrome, and it has certainly been agreed between all doctors that he does suffer from carpal tunnel syndrome, but it might be that he fits into that category which says that his carpal tunnel syndrome or condition was definitely constitutional or genetically based.
It may be that he’s at the other end of the spectrum or, one would suspect, more likely, given that these things usually follow a normal curve of progression, that he fits somewhere in the middle. I don’t quite know where that middle may be without having heard the evidence and heard the submissions in relation to his particular constitutional conditions and also the work that he did.”
In light of the fact that the Arbitrator had dealt with similar claims in the past and was aware of the existence of the disputed articles, he felt it was vital that he provide the information to the parties to give them the opportunity to address him on it (transcript, page nine line 25). Not only did he give the parties the opportunity to address him on the content of the articles but he gave them the time and opportunity to provide the material to their doctors’ for comment. Dr Stapleton examined Mr Narayan on 17 June 2005 and provided a report of that date to the Appellant Employer’s solicitor. For reasons that are not explained, Dr Stapleton does not comment on the disputed articles but instead attaches his own draft unpublished paper headed “Occupation & Carpal Tunnel Syndrome” which he has submitted to the ANZ Journal of Surgery.
The Arbitrator stated at page 10 line 16 that his views about the matter before him were not fixed and the course he adopted was to provide the parties with the maximum opportunity to understand the material, to make submissions and to place before him “any further expert evidence they wished in relation to that material” (transcript page 10 line 19).
The Appellant Employer argues that the whilst an Arbitrator is entitled to inform himself or herself on any matter, that should only be done so long as the “proper consideration” of the matter permits (section 354(2)). It is submitted that the words “proper consideration” require the Arbitrator to act in a way which would be considered ‘proper’ given his or her position as an independent quasi judicial decision maker and that it cannot be said that the Arbitrator in the present case acted independently or properly when considering the matter because he had already formed a view in relation to the evidence by the conciliation on 8 June 2005.
The Authorities – Procedural Fairness
There is no doubt that the Commission and its Arbitrator’s are bound to comply with the rules of natural justice and procedural fairness (Inghams Enterprises Pty Ltd v Zarb [2003] NSWWCCPD 15). The fundamental principles of procedural fairness have been stated by Dr M Allars in Introduction to Australian Administrative Review (1990) at 236 to be:
“The three principles of procedural fairness are the hearing rule, the bias rule and the no evidence rule. The hearing rule, based on the maxim audi alteram partem, requires a decision-maker to give an opportunity to be heard to a person whose interest will be adversely affected by the decision. The bias rule, based on the maxim nemo debet esse in propria sua causa, requires a decision-maker to be disinterested or unbiased in the matter to be decided...The no evidence rule, which has developed comparatively recently, requires that a decision be based upon logically probative evidence.”
In Kioa v West (1985) 159 CLR 550 Mason J (as he then was) said at [31]:
“31. The law has now developed to a point where it may be accepted that there
is a common law duty to act fairly, in the sense of according procedural
fairness, in the making of administrative decisions which affect rights,
interests and legitimate expectations, subject only to the clear manifestationof a contrary statutory intention.”
In In Re Minister for Immigration & Multicultural Affairs; ex parte Lam (2003) 214 CLR 1 (‘Lam’)the High Court discussed the manner in which procedural fairness cases are approached by the courts, and Gleeson CJ said (at 14, [37]):
“Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.”
In Muin v Refugee Tribunal [2002] HCA 30 (‘Muin’) Justice McHugh stated the requirement as follows at [123]:
“Natural justice requires that a person whose interests are likely to be affected by an exercise of power be given an opportunity to deal with matters adverse to his or her interests that the repository of the power proposes to take into account in exercising the power.”
In considering the application of the rules of natural justice to the Commission the NSW Court of Appeal held in Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 at [20] that:
“As ever when a claim is made that Natural Justice has not been accorded, regard must be paid to the legal context in which the decision-maker operates and to the law regulating the conduct of the proceedings.”
The judgment by Gibbs CJ in National Companies and Securities Commission vNews Corporation Limited (1984) 156 CLR 296 at 312 is also instructive:
“In Russell v. The Duke of Norfolk (1949) 1 All ER 109 Tucker L.J. said, at p 118: ‘The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth.’ The passage has frequently been approved - for example, by this Court in Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at p 552. The authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise.” (emphasis added)
The Authorities - Bias
The question of what conduct constitutes apprehended bias was considered by the High Court in Johnson v Johnson (2000) 201 CLR 488 where it was held at [11] and [12]:
“It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
That test has been adopted, in preference to a differently expressed test that has been applied in England [cf Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451], for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done [cf R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259 per Lord Hewart CJ]. It is based upon the need for public confidence in the administration of justice. ‘If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision’ [R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 263]. The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is ‘a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial’ [Vakauta v Kelly (1988) 13 NSWLR 502 at 527 per McHugh JA, adopted in (1989) 167 CLR 568 at 584-585 per Toohey J].”
It should be noted that the test to be applied is an objective one (Minister for Immigration,Local Government and Ethnic Affairs v Mok (1994) FCR 375).
In Re JRL; Ex parte CJL (1986) 161 CLR 342 per Mason J (as he then was) said at 352:
“It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be ‘firmly established’ (Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at pp 553-554; Watson, at p 262; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12, at p 14; 32 ALR 47, at pp 50-51). Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.” (emphasis added)
It is not sufficient if a reasonable bystander “has a vague sense of unease or disquiet” (Jones v Australian Competition & Consumer Commission (2002) 76 ALD 424.
The above principles were considered by the NSW Court of Appeal in Kwan v Kang & 2 Ors [2003] NSWCA 336 at [83] where in a unanimous decision the court said:
“There must be a reasonable apprehension on the part of the fictitious observer that the decision-maker’s mind is so prejudiced in favour of a conclusion already formed that he or she might not alter that conclusion, irrespective of the evidence or arguments presented to him or her (see the approach expressed in Laws v Australian Broadcasting Tribunal at 100, varied in the light of Johnson v Johnson).”
Their Honours added at [85]:
“In R v Masters (1992) 26 NSWLR 450 at 471 this Court, in a joint judgment, referred to Re Polites; Ex parte Hoyts Corporation Pty Limited (No 2) (1991) 173 CLR 78 at 85-87 and Re JRL; Ex Parte CJL and said:
‘The effect of those unanimous pronouncements was clear. The fact that a judge has decided an issue in a particular way, and is likely to decide it in the same way when it arises again, does not amount to pre-judgment which may require him to disqualify himself in order to avoid an apprehension of bias. The reasonable apprehension which should lead to disqualification must be that the judge will not decide the case impartially or without prejudice, not simply that he or she will decide the case adversely to one party.’”
In Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 507 (‘Jia’) Gleeson CJ and Gummow J said at [71] and [72]:
“…Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias.
...The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.” (footnotes omitted)
The Appellant Employer relies on Antoun in support of its position. In that case the trial judge expressed his conclusion as to the outcome of a ‘no case’ submission before hearing any argument, whether on the facts or law. The High Court held that the judge should have disqualified himself. Kirby J held at [29] and [30]:
“A line is drawn between forthright and robust indications of a trial judge’s tentative views on a point of importance in a trial and an impermissible indication of prejudgment that has the effect of disqualifying the judge from further conduct of the proceedings. Sometimes, that line will be hard to discern. But, in this case, I agree with the other members of this Court that the trial judge crossed it.
The most powerful evidence that he did so appears from the record. He expressed his conclusion as to the outcome of a submission before hearing any argument from the appellants, whether on the facts or the law. Every judge of experience knows that pertinent facts can be forgotten or mistaken. As well, the law can be misunderstood or an aspect of it overlooked. Some opportunity should therefore have been given to counsel to develop their submissions, if necessary in writing, prepared overnight. The repeated insistence that any submissions would not bear fruit and the later unrequested, unargued revocation (or non-continuance) of bail reinforced the conclusion initially given. The line was crossed. The trial judge thereby disqualified himself.”
In the same case Hayne J held at [56]:
“For the moment, what is determinatively significant is that the trial judge said that a submission of no case to answer would be rejected without knowing what form that submission would take and without knowing in even the broadest outline what was said to be its basis. And having said that the submission would be rejected, the trial judge, after the case had been adjourned overnight, went out of his way when the case resumed to emphasise to counsel that he had meant what he had said. It was inevitable that a fair-minded lay observer might reasonably apprehend in this case that the judge might not bring an impartial mind to the resolution of the question that the judge was required to decide on the no case submission. And without knowing whether the no case submission would take the form of pointing to some alleged deficiency in the prosecution proofs or instead be directed to the weight of the evidence advanced by the prosecution, it was inevitable that the fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the final questions that the judge was called on to decide in the trial.”
I do not believe that Antoun provides the Appellant Employer with any assistance in the present case. The Arbitrator did not say, or even imply, that a submission that carpal tunnel syndrome was not related to Mr Narayan’s employment, would be rejected.
The Legislation
In light of the above authorities it is appropriate to consider the provisions that govern proceedings before the Commission. They are set out in Chapter 7 of the 1998 Act and in section 354 which provides as follows:
“354 Procedure before Commission
(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 such manner as 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.
(4) Proceedings need not be conducted by formal hearing and may be conducted by way of a conference between the parties, including a conference at which the parties (or some of them) participate by telephone, closed-circuit television or other means.
(5) Subject to any general directions of the President, the Commission may hold a conference with all relevant parties in attendance and with relevant experts in attendance, or a separate conference in private with any of them.
(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.
(7) An assessment or determination is to be made by the Commission having regard to such information as is conveniently available to the Commission, even if one or more of the parties to the assessment or determination proceedings does not co-operate or ceases to co-operate.
(8) In proceedings before a court with respect to a claim for work injury damages (other than proceedings under section 235A or 235C or under the Crimes Act 1900 with respect to fraud), evidence of a statement made in proceedings before the Commission is not admissible unless the person who made the statement agrees to the evidence being admitted.” (emphasis added)
Part 15 Rule 15.2 of the Workers Compensation Commission Rules 2006 (‘the Rules’) is also relevant. This Rule reproduces, in identical terms, Rules 70 of the Workers Compensation Commission Rules 2003. It provides:
“Principles of procedure
When informing itself on any matter, the Commission is to bear in mind the following principles:(a) evidence should be logical and probative,
(b) evidence should be relevant to the facts in issue and the issues in dispute,
(c) evidence based on speculation or unsubstantiated assumptions is unacceptable,
(d) unqualified opinions are unacceptable.”
In addition, the conduct of the Commission’s Arbitrators is governed by the “Arbitrators Code of Conduct” (‘the Code of Conduct’) issued by the President, Justice Sheehan, and the Registrar of the Commission, Ms Helen Walker. The Code of Conduct states the “Arbitrators Role” as follows:
“ARBITRATORS ROLE
2. The fundamental role of Arbitrators is to be impartial and independent in carrying out their role of attempting to bring the parties involved in a dispute to a settlement acceptable to all of them and, where this is not achieved, making a determination.”
Under “General Responsibilities” the Code of Conduct states:
“4. Arbitrators have the following general responsibilities:
• to uphold the highest standards of integrity and honesty and to act ethically in accordance with the law,
• to ensure fairness in dealing with parties involved in the arbitration process,
• to remain independent from the parties involved in the matter before them,
• to maintain the highest professional standards, in particular by continuing to improve and develop their professional knowledge and skills, and
• to uphold the integrity and reputation of the Commission at all times. To this end, Arbitrators must refrain from engaging in activities, or expressing opinions that might diminish the standing of the Commission or compromise their ability to deal with a specific case.”
Under “Fairness in Proceedings” the Code of Conduct states:
“5. With respect to their duty to ensure fairness, Arbitrators, in exercising their powers should:
• conduct proceedings according to the law, with due regard to equity, good conscious and the substantial merits of the case,
• abide by principles of procedural fairness,
• ensure that all parties are given adequate opportunity to participate in proceedings,
• ensure that decisions are based on relevant and logically probative information,
• treat the parties involved with respect and courtesy,
• take into consideration any special needs, such as language, cultural background, literacy or disability,
• ensure that any communication with the parties and witnesses occurs in an open and transparent way, and
• consider any factors that may give rise to an unfair advantage to one party over another.”
The Code of Conduct is in the nature of a ‘Guideline’ for Arbitrators. The force and effect of the Commission’s Guidelines was considered by Deputy President Byron in Rick Damelian Pty Limited v Romanas [2004] NSWWCCPD 93 where he said at [45]:
“The Guideline issued by the President is not a creature of statute but simply aims to provide a practical framework within which many of the practices, procedures and proceedings of the Commission ought to be conducted in the context of the Commission’s objectives and other relevant, statutory provisions.”
In my view the Code of Conduct confirms, subject to the express legislative provisions I have set out above, that the common law principles of procedural fairness apply to the Commission’s Arbitrators and, therefore, to the proceedings in the Commission.
CONCLUSIONS
Applying the above authorities to the present case there are several reasons why I believe the Arbitrator was correct when he refused to disqualify himself on the grounds of alleged apprehended bias, and, also, that the Appellant Employer was not denied procedural fairness in the conduct of the proceedings.
First, I am inclined to the view that the ‘note’ made by Mr McDiarmid is not completely accurate. I have reached this conclusion on the basis of the submissions by Mr Stiles on 29 June 2005 which make no suggestion that the Arbitrator said he thought Drs Stapleton and Truskett were ‘wrong’. The complaint made by Mr Stiles dealt with the “information that has been sent to us”. That is, the disputed articles. If the Arbitrator had said on 8 June 2005 that he believed Drs Stapleton and Truskett were ‘wrong’, one would have expected that point to have been made loud and clear in support of the application that he disqualify himself. It was not mentioned at all. In addition, the Arbitrator’s comments during argument on 29 June 2005 make it clear beyond doubt that he had not formed the view that Drs Stapleton and Truskett were necessarily wrong in their conclusions but he obviously had doubts that the issue was as ‘black and white’ as those doctors suggested (transcript, page eight line 34). This analysis of the Arbitrator’s conduct accords with the submission made by the Respondent Worker on appeal that the Arbitrator did not say that he “did not accept” the Appellant Employer’s medical case, but he indicated that the situation was more complex.
Second, even if the ‘note’ from Mr McDiarmid is accepted as being accurate, I do not believe that that note, either taken on its own or with all of the evidence and submissions in the case, indicates that the Arbitrator was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented” (Jia). There were two main issues for the Arbitrator to consider and decide in respect of the medical evidence. He had to assess whether the condition of carpal tunnel syndrome was purely constitutional, as suggested by Drs Stapleton and Truskett. In addition, he had to determine whether, if the condition was not purely constitutional, if it had been caused or aggravated by Mr Narayan’s employment with the Appellant Employer. If the Arbitrator said on 8 June 2005 that he thought Drs Stapleton and Truskett were ‘wrong’, it may well be that he was expressing the view that the doctors were wrong in their rigidly expressed view that the condition of carpal tunnel syndrome is a constitutional condition in all circumstances regardless of the work activities performed by a worker. It would not have been an error for the Arbitrator to express such a view, provided he kept an open mind to the issue he had to ultimately decide. I believe he did keep an open mind to the ultimate question of liability. Therefore, I am not satisfied that the ‘reasonable bystander’ would have had even a “vague sense of unease”, let alone have been satisfied that apprehended bias had been “firmly established”.
Third, the disputed articles did not blindly support the Respondent Worker’s case. The first article concluded that there was a “substantial body of credible epidemiologic research [providing] strong evidence of an association between MSDs and certain work-related physical factors when there are high levels of exposure and especially in combination with exposure to more than one physical factor…” (The U.S. Department of Health and Human Services, National Institute of Occupational Safety and Health (NIOSH) report into Musculoskeletal Disorders (MSDs) and Workplace Factors, July 1997, at page 10). The second article (Clinical Evaluation and Management of Work-Related Carpal Tunnel
Syndrome from the American Journal of Industrial Medicine, 2000) noted at page 65 that there was a “robust debate regarding the work-relatedness of CST”, a discussion of which was beyond the scope of the article. However, it did conclude at page 72 that “review of the literature shows that CTS is associated with forceful and repetitive use of the hands as well as use of tools that transmit vibration to the hands and arms”. Nevertheless, it was essential for the Respondent Worker to tender appropriate evidence to support his claim that his carpal tunnel syndrome had been caused by his duties with the Appellant Employer.
Fourth, section 354(2) expressly permits the Commission to “inform itself on any matter in such manner” it thinks fits. I do not believe this provision gives Arbitrators carte blanch to consider any material that he or she may consider of interest to an issue in dispute. The broad terms of section 354 are constrained by Rule 15.2 set out above. In addition to the requirements that the evidence be logical, probative and relevant to the facts in issue and the issues in dispute, I would add that Arbitrator’s, when seeking to inform themselves on matters, have a duty to comply with the rules of natural justice and procedural fairness as discussed above. That is, they must give all the parties in the case a reasonable opportunity to consider the material. This includes allowing a reasonable time to seek an opinion from their own specialist or do their own research on the particular topic. The power should be used sparingly and cautiously. Usually, but not always, this will mean that the power should only be used when it is considered necessary to enable the particular matter to be determined according to its “substantial merits” (section 354(3)). Arbitrators should always be vigilant not to be, or give the appearance of being, an advocate for one side. In my opinion the Arbitrator in the present case acted fairly and with due regard to the principles of procedural fairness and the legislative provisions under which the Commission operates.
I do not accept the Appellant Employer’s argument that the word ‘proper’ in section 354(2) means ‘proper’ given the Arbitrator’s position as an independent decision maker. The words “proper consideration of the matter” in section 354(2) must be read with the provisions set out in Rule 15.2. In my opinion, the word ‘proper’ in section 354(2) means the first and third of the meanings given to it in the Macquarie Dictionary, second edition, at 1413, namely, “adapted or appropriate to the purpose or circumstance; fit; suitable: the proper time to plant”, and “fitting; right”. If an Arbitrator is concerned that a particular issue has not been adequately dealt with by the evidence and, therefore, the ‘proper consideration of the matter’ requires that additional material be considered, he or she is permitted to inform himself or herself, but always subject to the rules of procedural fairness, the provisions of the legislation, Rule 15.2 and the requirement that matters be determined according to there ‘substantial merits’. An Arbitrator’s conduct must also be ‘proper’, that is, “conforming to established standards of behaviour” (Macquarie Dictionary, second meaning). This meaning of the word ‘proper’ does not come from section 354(2) but from the general principles of procedural fairness which Arbitrators are bound to apply. The ‘established standard of behaviour’ is that standard summarised in the quote set out at paragraph [46] above from Dr Allars and as stated by the High Court in cases such as Muin and Lam.
The Arbitrator in the present case did comply with the rules of procedural fairness in that he:
(a)informed the parties of the existence of the disputed articles;
(b)gave the parties a copy of the disputed articles;
(c)adjourned the proceedings for a reasonable time to allow both sides time to consider the material and obtain an opinion from their own experts or do their own research, and
(d)invited further evidence and submissions on the issues dealt with in the articles.
For reasons that were not explained, the Appellant Employer did not obtain any evidence dealing with the contents of the disputed articles. It is surprising that Dr Stapleton saw Mr Narayan on 17 June 2005 and prepared a further report of that date and yet he made no reference to the articles. That failure cannot be laid at the door of the Arbitrator who forwarded the articles to the parties’ legal representatives by DX on or about 9 June 2005. No submission was made that further time was required in order to obtain a reply to the matters dealt with in the articles.
Fifth, the reference in the Direction of 9 June 2005 to the disputed articles being “material on which he intends to base his decision with respect to the Applicant’s claim” does not, in my view, indicate bias but merely indicates that the Arbitrator considered the material to be relevant and probative. It did not indicate that he had closed his mind to further persuasion in the light of submissions or further evidence.
Last, on any view of the evidence, I do not believe that any part of the Arbitrator’s conduct in the present case would cause a fair-minded lay observer to apprehend that the Arbitrator might not bring an impartial and unprejudiced mind to the resolution of the questions he had to decide. I do not believe the Arbitrator closed his mind to the issues he had to determine.
For the reasons set out above I do not believe the Arbitrator’s conduct or rulings involved any error of fact, law or discretion.
DECISION
The Arbitrator’s decision of 4 July 2005 is confirmed.
COSTS
The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.
Bill Roche
Acting Deputy President
6 November 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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