Philip Leong Stores Pty Ltd v Gafa - [2024] NSWPICPD 53

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Philip Leong Stores Pty Ltd v Gafa [2024] NSWPICPD 53
APPELLANT:	Philip Leong Stores Pty Ltd
RESPONDENT:	Agamaitu Gafa
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-W4447/22
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	29 August 2024
ORDERS MADE ON APPEAL:	1. The Member’s Certificate of Determination dated 18 September 2023 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – Section 352(5A) of the Workplace Injury Management and Workers Compensation Act 1998 – an appeal does not stay an award for payment of weekly compensation – whether the Member erred by failing to address the submissions made – Whisprun Pty Ltd v Dixon [2003] HCA 48 applied – whether the Member erred by failing to provide reasons – Musija v Kresa [2010] VSCA 163 applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr T Grimes, counsel
BBW Lawyers
Respondent:
Mr C Tanner, counsel
Turner Freeman Lawyers
DECISION UNDER APPEAL:	Gafa v Philip Leong Stores Pty Ltd (W4447/22, 18 September 2023)
MEMBER:	Mr R Perrignon
DATE OF MEMBER’S DECISION:	18 September 2023

INTRODUCTION AND BACKGROUND

Mr Agamaitu Gafa (the respondent) was employed by Philip Leong Stores Pty Limited (the appellant) as a storeman in a Woolworths Distribution Centre, commencing in 2014.
On 4 December 2019, he injured his third and fourth fingers of his left hand when closing a truck roller door. He underwent surgery on the day of the injury. Liability was accepted by the appellant. The respondent was off work until 18 February 2020, then returned to work working reduced hours and with restrictions in place.
Following his return to work, the respondent was called to a number of meetings conducted by the appellant’s management about the occurrence of his injury, warnings were issued to him by the appellant, followed by performance and safety warnings. Ultimately, on 25 February 2020, the appellant issued a First and Final Warning letter directed to the respondent.
The respondent attended his general practitioner on that day, complaining of stress and anxiety. His general practitioner certified that he was unfit for work because of work pressures and referred him for treatment by a psychologist and a psychiatrist. The respondent claimed workers compensation in respect of the psychological condition.
Liability for the claim was denied by the appellant on the basis that the respondent had not suffered a compensable psychological condition, the respondent’s employment was not the main contributing factor to any psychological condition, or, if the respondent did suffer from a psychological condition, it was not compensable because it was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the appellant with respect to performance appraisal and/or discipline, pursuant to s 11A(1) of the Workers Compensation Act 1987 (the 1987 Act).
The respondent commenced proceedings in the Personal Injury Commission (the Commission), claiming weekly payments of compensation, treatment expenses and 24% whole person impairment in respect of the psychological injury. The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWPICPD 53
Decision Date: 29 August 2024

CaseChat Overview and Summary

The case of Philip Leong Stores Pty Ltd v Gafa involved an appeal against a decision of the Member of the Workers Compensation Commission. The appellant, Philip Leong Stores Pty Ltd, contested the Member’s determination regarding the respondent’s entitlement to weekly compensation payments. The appeal raised two primary issues: whether the Member had erred by not addressing certain submissions and whether the Member had failed to provide adequate reasons for his decision.

The legal issues centred on the interpretation and application of Rule 78 of the Personal Injury Commission Rules 2021, which mandates that decision-makers provide a brief statement of their reasons for determination. The appellant argued that the Member did not adequately address its submissions regarding the respondent's credibility and the impact of the respondent's overseas trips on his credibility. The appellant contended that the Member's failure to consider certain evidence and address inconsistencies amounted to an error of law. Additionally, the appellant argued that the Member’s reasons for decision were insufficient to meet the requirements of Rule 78, as they did not clearly outline the decision-maker’s findings on material questions of fact, understanding of applicable law, and reasoning processes.

The court examined the Member's decision and found that while the Member had addressed some of the submissions, there was a failure to fully consider and respond to others. The court noted that the Member's decision lacked detailed reasoning and did not sufficiently explain how the evidence was evaluated or why certain submissions were not accepted. The court concluded that the Member had erred in not providing adequate reasons for his determination, as required by Rule 78. The court held that the failure to provide clear and comprehensive reasons rendered the decision open to challenge and potentially unjust.

The final orders of the court were to set aside the Member's decision and remit the matter back to the Commission for reconsideration in light of the court's findings. The court emphasised the importance of decision-makers adhering to the requirements of providing clear and sufficient reasons for their determinations, in accordance with Rule 78 of the 2021 Rules.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Rule 78 of the Personal Injury Commission Rules 2021 (the 2021 Rules) provides:“78 Statement of reasons for decision(1) This rule applies only in relation to the following applicable proceedings—(a)Commission proceedings,(b)merit review proceedings.(2) A determination of the appropriate decision-maker in applicable proceedings to which this rule applies is to be accompanied by a brief statement of the appropriate decision-maker’s reasons for the determination that includes the following—(a)the appropriate decision-maker’s findings on material questions of fact, referring to the evidence or other material on which those findings were based,(b)the appropriate decision-maker’s understanding of the applicable law,(c)the reasoning processes that led the appropriate decision-maker to the conclusions made.(3) Without limiting subrule (2), the reasons are to be stated sufficiently, in the opinion of the appropriate decision-maker, to make the parties to the proceedings aware of the appropriate decision-maker’s view of the case made by each party.” The appellant did not provide submissions following receipt of the transcripts or in reply to the respondent’s submissions. The appellant reproduces r 78 of the 2021 Rules and submits that the Member failed to provide reasons for his conclusion and failed to provide sufficient reasoning in order for the parties to be aware of his view of the case put by each party. The appellant quotes from the decision of Deputy President Fleming in M & S Shipman Pty Ltd v Matters,[19] in which Fleming DP discussed what is required in order to succeed in a ground of appeal asserting that the decision-maker’s reasons were inadequate. The appellant submits that a failure to address inconsistencies in the evidence, or to properly analyse the evidence and adequately consider all of the relevant evidence before determining which evidence is preferred, can amount to an error of law, relying on Symbion Health Limited v Ford,[20] and Charles Sturt University v Manning[21] as authorities for those propositions.[19] [2003] NSWWCCPD 19.[20] [2008] NSWWCCPD 13.[21] [2016] NSWWCCPD 10. The appellant refers to its submissions made to the Member, which it describes as “extensive”, as follows:(a) the desktop investigation report severely impacted the respondent’s credit;(b) the Commission should not find that the respondent was a witness of truth;(c) the respondent’s failure to reveal his overseas trip to Dr Kumagaya further damaged the respondent’s credit, and (d) the respondent’s failure to reveal his overseas trip to Dr Lim further damaged the respondent’s credit which should lead the Commission to conclude that the respondent was not a witness of truth. The appellant asserts that the respondent made no submissions to the Member as to the respondent’s credit. The appellant asserts that the Member merely found that the report of Dr Hong did not record an inaccurate history because his report was provided before the respondent travelled overseas, and that he was not required to consider the report of Dr Kumagaya dated 27 May 2022 or the report and consultation note recorded by Dr Lim on 26 July 2022 because there was other evidence as to the respondent’s capacity for work.

Ratio Decidendi

Legal Principle Established

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