Power v NSW Logistics Pty Ltd t/as Hi-Trans Express
[2015] NSWWCCPD 20
•12 March 2015
| WORKERS COMPENSATION COMMISSION | |||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||
| CITATION: | Power v NSW Logistics Pty Ltd t/as Hi-Trans Express [2015] NSWWCCPD 20 | ||
| APPELLANT: | Tracey Power | ||
| RESPONDENT: | NSW Logistics Pty Ltd t/as Hi-Trans Express | ||
| INSURER: | QBE Workers Compensation (NSW) Ltd | ||
| FILE NUMBER: | A1-7135/13 | ||
| ARBITRATOR: | Mr J Phillips SC | ||
| DATE OF ARBITRATOR’S DECISION: | 3 November 2014 | ||
| DATE OF APPEAL DECISION: | 12 March 2015 | ||
| SUBJECT MATTER OF DECISION: | Psychological injury; calculation of time to appeal; extension of time to appeal; fresh evidence or additional evidence on appeal; failure to seek leave to rely on material in Application to Admit Late Documents; alleged failure by Arbitrator to consider material in Application to Admit Late Documents; obligation on parties to tender evidence at arbitration; alleged denial of procedural fairness; application of principles in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336; failure to discharge onus of proof; whether Arbitrator gave undue weight to hearsay, supposition or suspicion | ||
| PRESIDENTIAL MEMBER: | Deputy President Bill Roche | ||
| HEARING: | On the papers | ||
| REPRESENTATION: | Appellant: | Shine Lawyers | |
| Respondent: | Holman Webb | ||
| ORDERS MADE ON APPEAL: | 1. Time to appeal is extended until 2 December 2014. 2. The Arbitrator’s determination of 3 November 2014 is confirmed. 3. No order as to costs. | ||
INTRODUCTION
This case concerns a claim for compensation for a psychological condition allegedly caused by the receipt of unwanted text messages and an alleged sexual assault. In an appeal filed out of time, the worker seeks to challenge the Arbitrator’s finding that there was no evidence that the text messages were received in the course of, or arose out of, the worker’s employment and that, with regard to the alleged sexual assault, she had not discharged the onus of proof. For the reasons explained below the appeal is unsuccessful.
BACKGROUND
The appellant worker, Tracey Power started work with the respondent employer, NSW Logistics Pty Ltd t/as Hi-Trans Express, as an administrative clerk in July 2011. She claims that she has suffered a psychological injury in the course of, or arising out of, her employment with the respondent.
Ms Power’s allegation, as set out in the Amended Application to Resolve a Dispute filed with the Commission on 5 March 2014, is that she was “subjected to harassment via explicit text messages and was also sexually assaulted by a colleague”. It is accepted that she started receiving text messages, late at night or on weekends, on her mobile phone in February 2012. Ms Power said she received them every weekend. There is no evidence of exactly when they stopped, but the inference is that they stopped in late 2012.
Ms Power alleged that the text messages, which were of a suggestive sexual nature, were sent by X, a line haul truck driver employed by the respondent. She further alleged that X sexually assaulted her at the respondent’s office at Broken Hill on 27 November 2012 by putting one hand up her dress and the other on her breast. X has consistently denied all allegations against him.
While Ms Power reported an incident on 27 November 2012 to her manager, Mr Paul Cuy, his evidence is that the only complaint she made was that X said “what would you do if I put my hand up your skirt” and that she made no allegation that she had been physically assaulted. He added that she was not crying or visibly upset.
With regard to the text messages, Mr Cuy acknowledges that Ms Power had complained of such messages from about February 2012. However, despite a search of the respondent’s mobile phone records, he was unable to trace the source to anyone associated with the respondent.
Ms Power saw her general practitioner, Dr Rosalind Menzies, on 29 November 2012, but gave no history of any assault to her until 20 December 2012.
Ms Power took sick leave from around 19 December 2012 until 7 January 2013. She completed an Accident/Incident/Injury Report form on 7 January 2013 and has not returned to work since that date. The insurer disputed that Ms Power received an injury in the course of or arising out of her employment, and that, if she did receive such an injury, that employment was a substantial contributing factor to any injury and that she suffered any incapacity.
In an Application to Resolve a Dispute filed in the Commission on 24 July 2013, Ms Power claimed weekly compensation from 6 March 2013 to date and continuing, together with hospital and medical expenses, as a result of a post-traumatic stress disorder caused by the events described at [3] above. The claim was later amended to add a claim for lump sum compensation in respect of a 17 per cent whole person impairment.
The Commission listed the matter for conciliation and arbitration on 18 July 2014 at Broken Hill. On 17 July 2014, Ms Power’s solicitors, Shine Lawyers, filed an Application to Admit Late Documents (Form 2C) with the Commission in Sydney. That application had attached to it an undated statement from Ms Power. For convenience, I will refer to these documents, where appropriate, as the 17 July 2014 application and Ms Power’s undated statement.
The matter could not resolve and proceeded to arbitration. By leave, Ms Power was cross-examined and, as there was insufficient time to complete the hearing, the matter was adjourned and the parties were directed to file written submissions in accordance with a timetable set by the Arbitrator.
After receiving detailed written submissions from both sides, prepared by counsel, neither of which referred to the 17 July 2014 application or Ms Power’s undated statement, the Arbitrator delivered a written decision on 3 November 2014, in which he concluded that Ms Power had failed to discharge the onus of proof and he made an award for the respondent. The Commission issued a Certificate of Determination on 3 November 2014 in the following terms:
“1. There is an award for the respondent for all claims for psychiatric injury as alleged in the Application to Resolve a Dispute.”
In an appeal filed by her solicitors on 2 December 2014, Ms Power seeks to challenge the Arbitrator’s determination.
ON THE PAPERS
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’ without holding any conference or formal hearing and that this is the appropriate course in the circumstances.
ISSUES ON APPEAL
The issues sought to be argued on appeal are whether the Arbitrator erred in:
(a) “not considering all material served upon the Workers Compensation Commission and the [r]espondent which went directly to the evidence served by the [r]espondent in their Reply but also the Form 2C served on 10 July 2014” (not considering all material served);
(b) “stating [at [55]] that ‘there is therefore no evidence which could establish that the unwanted text messages arose out of or in the course of [Ms Power’s] employment with the respondent. She did not receive any of them at work nor is there any evidence of their origin from anybody engaged by or associated with the [r]espondent” (emphasis added in the submission) (not considering all material served);
(c) considering the effects of the claim on X (the effects of the claim on X), and
(d) giving undue weight to evidence which, by his own admission, contained hearsay (undue weight to hearsay).
In addition, two preliminary issues arise. First, whether the appeal was filed in time and, if it was not, whether time to appeal should be extended. Second, whether Ms Power’s undated statement should be admitted into evidence on appeal as fresh evidence or additional evidence. It is convenient to deal with the extension of time issue first.
EXTENSION OF TIME TO APPEAL
Was the appeal filed out of time?
After receiving the appeal on 2 December 2014, the Commission issued a direction on 4 December 2014 requiring, among other things, that Ms Power file submissions seeking an extension of time to appeal. In response to that direction, Ms Power’s solicitor, Mr Adam Abboud, submitted that the appeal was not filed out of time, noting that “the 28-day period should be done exclusive of the date on which the certificate was issued”.
It is correct that the 28-day period in which to appeal is calculated exclusive of the date on which the Certificate of Determination is issued. Adopting that approach, the appeal was filed out of time. Appeals under s 352 can “only be made within 28 days after the making of the decision appealed against” (emphasis added) (s 352(4)). An Arbitrator’s decision is made “when the Commission issues a certificate as to the determination of the dispute as required by s 294(1) of the 1998 Act” (Pt 16.2 r 2 of the Workers Compensation Commission Rules 2011 (the Rules)).
The Commission issued a Certificate of Determination under s 294 in the present matter on 3 November 2014. Under s 36 of the Interpretation Act 1987 the “given date” for the reckoning of time under s 352(4) is 3 November 2014 and time to appeal is calculated “exclusive of that day”.
Therefore, time ran from 4 November 2014. Allowing 28 days from 4 November 2014 (including 4 November 2014) means that the last day on which to appeal within time was 1 December 2014. As the appeal was lodged on 2 December 2014, it was filed out of time.
Submissions
Mr Abboud submitted that time to appeal should be extended because “exceptional circumstances” exist. He contended that:
“The basis of this appeal is quite extraordinary as it relates to evidence, which either by way of failure of the Registry to provide documents to the Arbitrator and/or error on behalf of the Arbitrator meant crucial evidence of [sic] which [Ms Power] relied upon was not part of the proceedings.”
Mr Abboud said that the Arbitrator was entitled to “apply his discretion in giving weight to evidence”, but that was not the basis of the appeal. Rather, he contended, the evidence (in the 17 July 2014 application) “was not admitted into [the] proceedings at all, likely due to error of either the Registry or the Arbitrator”.
Mr Abboud submitted that the failure of the Commission to provide a document to the Arbitrator and/or the error of the Arbitrator is “deemed as exceptional, especially when it was served electronically on both parties by email”. Therefore, there was “no prejudice to the [r]espondent in the filing of this appeal”.
Mr Abboud argued that an extension (of time to appeal) should be granted where to lose the right would cause “demonstrable and substantial injustice”. He said that a “failure to allow the appeal”, through no fault of Ms Power’s, will result in a gross injustice to Ms Power as “she has not had the chance of having a fair hearing”.
He contended that the discretion (to extend time to appeal) should be exercised to ensure that “justice between the parties” is achieved and that it appeared that “the failure of the WCC [sic] to provide the Form 2C filed by [Ms Power] on 17 July 2014 to the Arbitrator may have materially contributed to the failure of [Ms Power’s] case and hence the basis of the [a]ppeal”.
Mr Abboud said that if the Commission were not to grant an extension of time it would “be a compromise of the statutory objectives of the Commission and would not be conducive to the facilitation of a durable resolution”. He added that Ms Power “must be afforded procedural fairness and natural justice”.
In opposing the application to extend time to appeal, counsel for the respondent, Mr Stockley, submitted that Mr Abboud had not identified the exceptional circumstances which led to the appeal being lodged out of time, but has merely made submissions on the circumstances in which the 17 July 2014 documents were not before the Arbitrator. He contended that this goes only to the merits of the application for leave to adduce additional evidence on appeal, and the merits of the appeal, but provides no explanation as to why the appeal is out of time.
Discussion and findings
An extension of time in which to appeal is governed by Pt 16 r 16.2(12) of the 2011 Rules, which provides:
“(12) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”
McHugh J considered the question of extending time to appeal in Gallo v Dawson [1990] HCA 30; 64 ALJR 458 at 459. His Honour observed that, in order to determine whether the strict application of time limits will work an injustice, it is necessary to have regard to:
(a) the history of the proceedings;
(b) the conduct of the parties;
(c) the nature of the litigation;
(d) the consequences for the parties of the grant or refusal of the application for the extension of time;
(e) the prospects of the applicant succeeding in the appeal, and
(f) upon expiry of the time for appealing, the respondent has a vested right to retain the judgment unless the application for extension of time is granted.
Considering Pt 16 r 16.2(11) of the Commission’s 2006 Rules, which was in the same terms as Pt 16 r 16.2(12) of the current provision, Allsop P (as his Honour then was) in Bryce v Department of Corrective Services [2009] NSWCA 188 (Beazley JA (as her Honour then was) and Giles JA agreeing) said, at [10]:
“Whether or not there are exceptional circumstances and whether in those circumstances it is shown to the satisfaction of the Deputy President that demonstrable or substantial injustice would occur if leave were not granted is a composite expression in the rule to be dealt with within jurisdiction, …”
More recently, in an application to extend time to appeal by over three months, where the notice of intention to appeal was filed in time, Basten JA (Beazley P and Leeming JA agreeing) observed in Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2014] NSWCA 34, at [9]:
“The primary considerations on an application for leave to extend time within which to appeal are:
(a) the extent of the delay and the reasons therefor;
(b) the prejudice to the applicant if the application were to be refused;
(c) the prejudice to the defendant from the delay if the application were to be granted;
(d) the prospects of success on the proposed appeal.”
Neither party has suggested that there is anything exceptional about the history of the proceedings, the conduct of the parties, or the nature of the litigation that points one way or the other on whether time to appeal should be extended. Regrettably, Mr Abboud has presented no explanation as to how the appeal came to be filed out of time. I infer, from Mr Abboud’s submissions, that the appeal was filed out of time because he believed it was being filed in time. Such an error by a legal practitioner does not, of itself, provide exceptional circumstances for extending time to appeal.
On the other hand, the following factors weigh heavily in favour of extending time to appeal in this case:
(a) the appeal is only one day out of time;
(b) there is no obvious prejudice to the respondent if time to appeal is extended;
(c) whether Ms Power will be prejudiced will depend on the prospects of success of the appeal;
(d) Ms Power will be prejudiced if time to appeal is not extended because the additional evidence in her undated statement will not be properly and fully considered and the merits of the appeal cannot be properly determined without considering that material, and
(e) the appeal raises issues concerning the conduct of arbitrations generally.
Weighing the above matters I am satisfied, not without considerable hesitation, that there are exceptional circumstances that justify the extension of time to appeal. I extend time to appeal until 2 December 2014.
FRESH EVIDENCE OR ADDITIONAL EVIDENCE
The admission of fresh evidence or additional evidence on appeal is governed by s 352(6) of the 1998 Act which provides:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
As explained by Barrett JA (Macfarlan JA agreeing) in CHEP Australia Ltd v Strickland [2013] NSWCA 351 (Strickland), s 352(6) involves two threshold questions that are alternatives. The first goes to the issue of availability of the evidence in advance of the proceedings. The second involves an assessment of whether continued unavailability of the evidence “would cause substantial injustice in the case”. The power to admit the evidence is discretionary but the discretion only becomes available if the Commission is satisfied as to one of the threshold matters.
Barrett JA added (at [31]) that, if the first test is not satisfied, that is, if the evidence could, with reasonable diligence, have been obtained and tendered at the arbitration, the second test requires a decision as to the result that “would” emerge if the evidence were taken into account and the result that “would” emerge if it were not. If the result would be the same on each hypothesis, the ends of justice cannot be said to have been defeated by exclusion of the evidence.
The power to admit fresh or additional evidence is therefore concerned with evidence which, if accepted, would have been likely to demonstrate that the decision appealed against was erroneous (Northern NSW Local Health Network v Heggie [2013] NSWCA 255 per Sackville AJA (Ward JA agreeing) at [66]).
As Ms Power’s undated statement was available at the time of the arbitration, she can only rely on it on appeal if she can establish that the rejection of that statement “would cause a substantial injustice in the case”. Thus, applying the principles discussed in Strickland, it is necessary to consider what the result would be without considering the undated statement and what the result would be if it were admitted and considered. If the undated statement makes no difference to the outcome, it cannot be said that its exclusion will cause a substantial injustice in the case.
Regrettably, Mr Abboud has provided no separate submissions in support of his application to rely on the undated statement as fresh evidence or additional evidence on appeal. Instead, his submissions on this issue, such as they are, are included in his submissions in support of the substantive appeal. It is therefore necessary to consider the application to rely on the undated statement and the substantive appeal together.
NOT CONSIDERING ALL MATERIAL SERVED
Submissions
In support of ground one of the appeal, Mr Abboud submitted that Ms Power’s undated statement addressed a number of issues “but also went specifically to the evidence which the [r]espondent intended to rely upon in the admission of their Form 2C [filed] on 10 July 2014” (the 10 July 2014 application). This document “sought to include into [the] proceedings approximately 130 pages which included two medical [r]eports of Dr Inglis Howe Synnott (which were both dated in April 2014), documents produced by NSW Police and documents produced by Broken Hill Hospital”.
Mr Abboud said that the Arbitrator referred to these documents at various places in his decision. At [93], the Arbitrator said that “doctors either were not provided by [Ms Power] with a complete and frank account of her past psychiatric problems or were given an account about matters which [Ms Power] says occurred to her at work which were not in her evidence or were not pleaded”. Mr Abboud submitted that had Ms Power’s undated statement been provided to the Arbitrator, he would have had available to him evidence regarding Ms Power’s past psychiatric history, evidence that ultimately went to Ms Power’s credibility.
Mr Abboud contended that Ms Power has been significantly prejudiced, as the Arbitrator considered documents introduced into evidence by the respondent in its 10 July 2014 application but has failed to consider Ms Power’s “response to such evidence”. He said the “deficiencies that the Arbitrator points out in [Ms Power’s] evidence is [sic] cured in part by [the] Form 2C dated 17 July 2014, especially in regard to the statements relied upon by the [r]espondent”. He said that the strength of the respondent’s evidence, which the Arbitrator ultimately relied upon, “is also brought into question by [the] Form 2C dated 17 July 2014”.
Owing to Ms Power’s statement not being considered, she has been extremely prejudiced and denied procedural fairness, which goes against the objectives of the Commission. Mr Abboud submitted that “[t]he documents then are extremely relevant and go to the core issue of the AMS referral”. He said it would “represent a gross injustice to [Ms Power]” if the document of 17 July 2014 (Ms Power’s undated statement) is not considered within these proceedings. He submitted that, as matters ought to be conducted with as little formality as the case dictates, “the matter ought to be referred back with the additional information so that all relevant documents may be considered so that an informed decision can be made”.
This will uphold, so Mr Abboud contended, the objectives of the Commission and “facilitate a durable resolution”. He concluded that equity, good conscience and the substantial merits of the case, without regard to technicalities or legal forms, require that all relevant material be before the Commission to enable the proper consideration of the matter.
Dealing with the first ground of appeal, Mr Stockley submitted that in circumstances where the document of 17 July 2014 was not identified by counsel for Ms Power, Mr Hickey, during the (arbitration) hearing and where the Arbitrator did not have physical custody of the material, his failure to refer to it cannot disclose an error. The material could only be considered by the Arbitrator after an application to admit it had been made and there was no such application.
In support of ground two of the appeal, Mr Abboud referred to the Arbitrator’s statement at [55], where he said:
“55. There is therefore no evidence which could establish that the unwanted text messages arose out of or in the course of the applicant’s employment with the respondent. She did not receive any of them at work nor is there any evidence of their origin from anybody engaged by or associated with the respondent.” (emphasis added in the submission)
Mr Abboud said that this statement was incorrect and, had the document of 17 July 2014 been considered, “the Arbitrator would have seen at paragraph 37 on page 3 that the Police discovered that the number that was being used to text message [Ms Power] was registered to [Y], [X’s] daughter, as evidenced by the Late Documents Application on page 25 served 10 July 2014”. Mr Abboud argued that this error “goes directly to whether the injury arose out of or during the course of employment”.
With respect to the second ground of appeal, Mr Stockley said that if the evidence sought to be relied on was not properly before the Arbitrator, his failure to take it into account cannot constitute an error.
Dealing generally with the application to rely on additional evidence on appeal, Mr Stockley submitted that leave to admit Ms Power’s undated statement should be refused in circumstances where Ms Power has provided no explanation as to why no reference was made to this evidence either on the occasion of the arbitration or in the written submissions by counsel. Moreover, he said that no explanation has been given as to why the purported tender of the material was effected through the lodgment of an Application to Admit Late Documents on the day preceding a hearing scheduled to take place in Broken Hill.
Discussion and findings
To better understand the context of the application to rely on the undated statement on appeal, and the grounds of appeal in general, it is necessary to look at the proceedings before the Arbitrator and the parties’ submissions to the Arbitrator. At the conclusion of the oral evidence at Broken Hill, Mr Hickey pointed out that the parties had not “identified the documents” (T9.31) in evidence. This led to the following exchange, starting at T10.1:
“ARBITRATOR: I think we’ll deal with it [the identification of the documents] on the next occasion, I think.
MR HICKEY: No, one late application that is [Ms Power’s] last statement in response to - - -
ARBITRATOR: Is there any objection to that Mr Stockley?
MR STOCKLEY: I haven’t really – it came in last night.
ARBITRATOR: Right.
MR STOCKLEY: But I - - -
ARBITRATOR: Why don’t you deal with that on the next occasion?
MR STOCKLEY: I doubt very much that there’s any - - -
ARBITRATOR: Yes.
MR STOCKLEY: - - - problem with that.
ARBITRATOR: I think you can deal with that in your – and I think the written submissions, I think I discussed off the record, was that [Ms Power] would supply written submissions, touching on all the evidence, including that written statement. If there’s any objection Mr Stockley will deal with it – his objections in his submissions. You’ve got 28 days from today. The - and then from receipt of the applicant’s submissions, you’ve got 21 days Mr Stockley and then if you have anything in response to that Mr Hickey, you’ve got seven days after that date and I’ll just take it that anything which is currently before me will be part of the evidence and I’ll mark them accordingly in date order in relation to late documents. I think we should do this both of you, is to make sure I’ve got everything, any written submissions you should identify what your late documents are and in terms of the decision, I will mark them accordingly. If there’s any debate about this, so you can quite clearly set out what your late – all the documents you wish to rely upon and I’ll mark them and likewise same will attach to Mr Stockley’s document (indistinct)
MR HICKEY: (indistinct) agree on what they (indistinct)
MR STOCKLEY: That’s wonderful. Thank you.” (emphasis added)
Consistent with the Arbitrator’s direction, Mr Hickey filed his written submissions on 9 September 2014 and Mr Stockley filed his on 7 October 2014. Mr Hickey dealt, in detail, with the content of several Applications to Admit Late Documents filed on behalf of Ms Power by her solicitors. They were dated 12 February 2014, 13 February 2014, 5 March 2014 (three separate applications were filed on this day), 7 March 2014 and 10 March 2014. The Arbitrator gave each of these documents an exhibit letter, “B” through to “H” (exhibit “A” being the original Application to Resolve a Dispute filed on 24 July 2013).
Mr Hickey made detailed submissions about the documents attached to the respondent’s 10 July 2014 application. He also sought the admission into evidence of documents attached to an Application to Admit Late Documents filed by Shine Lawyers on 29 August 2014, which he described as “further fresh evidence” which was not foreshadowed at the arbitration. The Arbitrator rejected that application and that ruling has not been challenged.
Nowhere in Mr Hickey’s detailed and carefully reasoned submissions did he refer to Ms Power’s undated statement or the 17 July 2014 application. In other words, he made no application for leave to rely on the undated statement and it was not admitted into evidence. On appeal, Mr Abboud has provided no explanation as to why no application was made to rely on the undated statement. He seems to have assumed that a document is “admitted” once it was filed with the Registry. That is not correct. In the circumstances, it is not open to argue on appeal that the Arbitrator erred in not referring to it.
In the absence of any explanation as to why Mr Hickey did not seek leave to have the undated statement admitted, the only reasonable inference is that he made a forensic decision not to rely on it. It is fundamental that parties are bound by the conduct of their case at arbitration and it is not open to attempt to conduct a different case on appeal (University of Wollongong v Metwally (No 2) [1985] HCA 28; 59 ALJR 481).
Contrary to Mr Abboud’s submission, what happened involved no denial of procedural fairness to Ms Power. As was pointed out by Deane J in Sullivan v Department of Transport (1978) 20 ALR 323 at 343, procedural fairness requires only that a party be given “a reasonable opportunity to present his case” and not that the tribunal ensure “that a party takes the best advantage of the opportunity to which he is entitled”.
Ms Power had every opportunity to present her case. The Arbitrator expressly invited counsel to provide written submissions “touching on all the evidence, including the written statement”. Experienced counsel dealt comprehensively with the evidence but made no submissions about the undated statement. Indeed, Mr Hickey made no application that it be admitted into evidence. A party is bound by the conduct of his or her counsel (Smits v Roach [2006] HCA 36; 227 CLR 423 at [46] per Gleeson CJ, Heydon and Crennan JJ) and Mr Abboud has made no submission why that should not be so in this case.
It follows from the above that Mr Abboud’s submissions have proceeded on a fundamentally incorrect basis, namely, that the undated statement was not admitted into the proceedings “due to error by either the Registry or the Arbitrator”. There are two further points to note about this submission, which are relevant to the appeal and to proceedings in the Commission in general.
First, as explained by McColl JA (Giles and Tobias JJA agreeing) in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421 at [94], the Commission is modelled on adversarial proceedings, issues are defined by what “for convenience” can be described as “pleadings”, parties are entitled to be represented by a legal practitioner or agent, and, of particular importance in the present case, “they adduce the evidence upon which they wish to rely before the Arbitrator” (emphasis added).
It follows that it was for Ms Power’s legal advisers to tender, or, more accurately in this case, seek leave to tender, the evidence upon which they wished to rely. As they made no application for leave to tender the undated statement, it was not a document the Arbitrator had to consider.
Second, the Commission’s Rules require that all information and documents on which a party proposes to rely, and that are in the possession or control of the party, should be lodged and served with the Application to Resolve a Dispute or, if the party is a respondent, with the Reply (Pt 10 r 10.3(1) of the Rules).
Part 10 r 10(2) provides that, subject to sub-rr (3)–(5), a party may not in proceedings introduce evidence that has not been lodged and served as required by sub-r (1) or had not been provided to any other party as required by the 1998 Act or any regulation or guideline made under that Act. Subrule (3) provides that the Commission may, if it is satisfied that it is necessary to do so in the interests of justice, allow a party to introduce evidence that the party would otherwise be prevented from introducing because of the operation of sub-r (2).
Parties seeking to rely on sub-r (3) do so by filing an Application to Admit Late Documents. Where a party in default seeks to tender late documents, that party carries the onus of establishing why the Rules should not be enforced (Nelson Bay Pest Service Pty Ltd v Morrison [2007] NSWWCCPD 135). As noted above, Ms Power’s legal representatives did not seek leave to have the undated statement admitted into evidence. Merely filing an Application to Admit Late Documents did not mean that the documents attached to that application were in evidence.
The submission that the undated statement “went specifically to the evidence which the [r]espondent intended to rely upon” in the 10 July 2014 application was inaccurate. It is correct that that application had attached to it medical reports from Dr Synnott, a psychiatrist qualified by the respondent, documents produced by the NSW Police, and documents from Broken Hill Hospital. However, apart from the documents from the NSW Police, which are discussed below (from [77]), and a re-statement of matters in her unsigned statement attached to the original Application to Resolve a Dispute, the undated statement deals exclusively with documents attached to the respondent’s Reply, which had been filed almost one year earlier on 15 August 2013.
The undated statement does not refer at all to Dr Synnott’s reports and the relevance of Mr Abboud’s reference to those reports and the connection between those reports and the undated statement has not been identified. It is correct that, as Mr Abboud submitted, the Arbitrator referred to the documents attached to the 10 July 2014 application. As they formed part of the evidence before him, he was entitled to do so. That does not advance Ms Power’s position on appeal.
It is also correct that the Arbitrator said (at [93]) that doctors either were not provided by Ms Power with a complete and frank account of her past psychiatric problems or were given an account about matters which Ms Power says occurred to her at work which were not given in her evidence or were not pleaded. However, Mr Abboud’s submission that had the undated statement been provided to the Arbitrator, he would have had evidence regarding Ms Power’s past psychiatric history, which went to her credit, completely misses the point.
The Arbitrator’s full statement at [93] was:
“I have also taken into account in assessing the reliability of [Ms Power’s] evidence what she did and did not tell the doctors, in particular, Dr Menzies, Dr Ali and Dr Synott [sic]. Those doctors either were not provided by [Ms Power] with a complete and frank account of her past psychiatric problems or were given an account about matters which [Ms Power] says occurred to her at work which were not in her evidence or were not pleaded, such matters that [X] had stalked her before 27 November 2012 and after, [X] bullied her, other workers had bullied her and that her boss was unsupportive, had tried to hit on her and made inappropriate comments.”
To understand the context in which the Arbitrator made this statement, it is necessary to consider the submissions made to him. Mr Stockley submitted that Ms Power’s medical case was founded upon the opinion of Dr Ishrat Ali, consultant psychiatrist qualified by Ms Power’s solicitors, in his report of 27 February 2014. Mr Stockley said, and it has not been challenged, that:
(a) Dr Ali’s report had no history of the alleged sexual assault of 27 November 2012;
(b) Dr Ali’s opinion was based on assumptions of harassment, bullying and intimidation, none of which formed any part of the allegations relied on by Ms Power;
(c) Dr Ali had a history of the text messages and of Ms Power being “sexually harassed by a colleague and this frightened her”, and
(d) Dr Ali recorded a negative history of Ms Power suffering a previous psychiatric condition or having any previous psychiatric treatment.
Mr Stockley submitted that, based on this evidence, Ms Power’s own medical case “diminishes the confidence which can be had in her credibility on the central part of her claim”. He submitted that Ms Power declined to disclose to Dr Ali her true medical history or had lied about it. (This was a reference to documented evidence that Ms Power had a long history of depression and anxiety going back to 2002, discussed at [72] below.) In either event, he contended that “serious questions about [Ms Power’s] reliability arise and the weight of any conclusion reached by Dr Ali is diminished”.
Mr Stockley added that Ms Power also failed to disclose her significant psychiatric history to Dr Synnott and, as with Dr Ali, that several of the matters of which Ms Power complained to Dr Synnott did not form any part of the case in the Application to Resolve a Dispute. For example, Ms Power told Dr Synnott that her problems arose in part from the inaction of her boss and his sexually inappropriate comments. (This was presumably a reference to Ms Power’s supervisor, Mr Cuy, whose evidence is discussed below.)
Though Dr Synnott had a history of Ms Power having “psychological difficulties” following a double mastectomy in 1999, Mr Stockley submitted that that history was misleading when regard was had to the extensive and significant psychiatric history disclosed in the documents from Broken Hill Hospital. Those records showed a long history of depression and anxiety going back to 2002. This history included a suicide attempt, other depression, an overdose, multiple admissions, social agoraphobia and domestic disputes with her partner.
Mr Stockley also referred to the notes from Dr Rosalind Menzies, Ms Power’s general practitioner, and made the point that, despite seeing Dr Menzies on 29 November 2012, two days after the alleged assault, Dr Menzies recorded no note of it until 20 December 2012.
In light of these matters, nothing in Ms Power’s undated statement comes close to overcoming the significant issues identified by the Arbitrator at [93]. The undated statement makes no reference to Dr Ali’s incorrect and incomplete history. It merely says that “[m]uch is being made of my previous suffering of depression”, which was “primarily due to a botched double mastectomy which occurred in September 1999”. She added that despite her “previous depression and other stresses” in her life, she worked without difficulty with the respondent since July 2011 and in other employment since around 2004.
Ms Power’s capacity to work since July 2011 was not the issue addressed by Mr Stockley. The point Mr Stockley made, and which the Arbitrator accepted, was that Dr Ali based his opinion on a significantly deficient and inaccurate history and that undermined the weight that could be attached to it. Not only did Dr Ali have no history of Ms Power’s previous psychological difficulties, he had no history of the alleged assault, one of the two events (along with the text messages) that were alleged to have caused the psychological injury. Ms Power’s undated statement did not deal with that significant omission from Dr Ali’s report.
Dr Ali did, however, have a history of alleged bullying, harassment and intimidation, something that was not part of the claim. To rely on these matters would have required substantial further amendment to the Amended Application to Resolve a Dispute. Mr Hickey made no application to amend the claim and, even if he had, it is difficult to see how such an amendment, which would have amounted to a totally different case, would have been allowed.
The only reference in the undated statement to documents attached to the 10 July 2014 application is under the heading “Police”. Ms Power said:
“37. I am now aware that the Police discovered that the number that was being used to text message me was registered to Y, [X’s] daughter, as evidenced by the Late Documents Application on page 25 served 10 July 2014.
38. I attended the Police on three occasions. The reason I did not make a formal statement on the first occasion is because I was made to feel very uncomfortable by Constable Chloe Mugridge who was making accusations against me. In my fragile mental state I did not feel up to the task of providing a formal statement given the hostility I was made to feel.
39. I did however return and provided a full statement before being called back a third time by the police as they advised that [sic] had made an error.”
Mr Abboud did not explain how the Arbitrator’s failure to refer to this evidence prejudiced Ms Power. This evidence raises two points: first, the identity of the owner of the phone from which the relevant text messages originated and, second, Ms Power’s reluctance to give a statement to the police.
Dealing with the first of these points, Mr Abboud submitted that, based on the undated statement, the Arbitrator’s statement at [55] was incorrect. It will be recalled that the Arbitrator said that there was no evidence that the text messages originated “from anybody engaged by or associated with the respondent” (the full quote is reproduced at [48] above). Mr Abboud’s submission is plainly wrong. The evidence of the origin of the text messages is in the police records attached to the 10 July 2014 application. Those records were available to both parties and Mr Hickey expressly referred to them in his submissions, though not on this point. Thus, the undated statement adds nothing to the evidence that was already before the Arbitrator.
In any event, the evidence that the text messages were sent from a phone registered to Y does not establish that the Arbitrator erred in finding that there was no evidence that they originated from anyone “engaged by or associated with the respondent”. Other than being X’s daughter, assuming that Ms Power’s assertion on this point is accepted, there is no evidence that Y is associated with the respondent. Nor is there any evidence about access X had to his daughter’s phone. It follows that it was open to the Arbitrator to conclude that there was no evidence that the unwanted text messages arose out of or (were received) in the course Ms Power’s employment with the respondent. The additional evidence sought to be tendered makes no difference to this conclusion and adds nothing to the evidence that was already before the Arbitrator.
Dealing with Ms Power’s reluctance to give a statement to the police, the Arbitrator quoted (at [30]) the following submission by Mr Hickey about the police records:
“The police were unwilling to follow up the alleged assault until [Ms Power] gave them a signed record of interview/statement which the police records record she was hesitant to do as she states her reasons at page 4 that ‘she was concerned about what people might think if she made a formal complaint’.”
This submission was not completely consistent with the police records, which revealed that Ms Power only provided a statement at her third visit, which was not until 15 January 2013, she having previously attended on 17 and 21 December 2012. However, other than to note Mr Hickey’s submission, the Arbitrator did not refer to that issue again and it did not form part of his reasons for not accepting Ms Power’s case. Therefore, the further information in the undated statement is of limited, if any, relevance on this point.
Moreover, the implied assertion in the undated statement, namely that Ms Power gave a statement when she attended the police on the second occasion, is inconsistent with the documented account by the police, which clearly records that Ms Power did not provide a statement until her third visit. Significantly, the police records state that “[d]ue to no offences being covered within this statement”, Ms Power was requested to attend Broken Hill Police Station on 7 February 2013 (which would have been her fourth attendance, not her third) so another statement could be obtained. It is not known if she attended on that day. Rather than advancing Ms Power’s case, her assertions on this issue in the undated statement raise another issue as to the general reliability of her evidence.
It follows from the above analysis that the submission that Ms Power has been significantly prejudiced, because the Arbitrator considered the documents introduced into evidence in the 10 July 2014 application but did not consider Ms Power’s response to such evidence, is not made out.
The submission that the strength of the respondent’s evidence is “brought into question” by the undated statement has not been supported by any specific reference to the evidence and is unpersuasive. It is correct that, in the undated statement, Ms Power has commented on the statements relied on by the respondent. To a large extent, her comments amount to a re-statement of the allegations she made in her unsigned statement, or a challenge to peripheral matters that are of limited, if any, relevance to the issues in dispute.
Ms Power’s assertion in the undated statement that when she handed her written complaint to Mr Cuy he was “fully aware of [her] allegations” fails to take account of Mr Cuy’s evidence that the complaint Ms Power made to him on 27 November 2012 made no mention of any assault. His evidence was that, on 27 November 2012, Ms Power only complained that X came up behind her and asked what she would do if he put his hand up her skirt. He added that her response, namely that that would be “inappropriate behaviour”, appeared “rehearsed” and that Ms Power was “not one to use these types of words when communicating”.
The assertion in the undated statement that Mr Cuy knew about the text messages from the time Ms Power started receiving them is something that the Arbitrator clearly accepted. Ms Power’s evidence in her unsigned statement was that Mr Cuy “checked the recorded numbers for all staff at the depot and the line haul drivers and it was established that this particular number did not appear on the list”. Thus, the evidence in the undated statement adds nothing to the evidence that was already before the Arbitrator, he having noted, for example, at [53]:
“[Ms Power] complained about the receipt of these text messages to her supervisor Mr Paul Cuy who at her request investigated possible sources of these text messages as to whether they were sent by any of the respondent’s employees. At paragraph 28 of Exhibit A on page 23 [Ms Power] says that despite [the fact that] she and Mr Cuy checked the numbers of the source of these text messages it did not match with any of the mobile phone numbers of any of the respondent’s employees including its line haul drivers.”
The Arbitrator further noted (at [54]) that though Ms Power suspected that the messages came from X, his mobile phone number did not match with any of the mobile phone numbers of any of the respondent’s employees, including its line haul drivers. He also recorded that X denied having ever communicated with Ms Power by text or phone. Thus, he concluded (at [55]) that there was no evidence that could establish that the text messages arose out of or in the course of Ms Power’s employment with the respondent. Mr Abboud has referred to no material in the undated statement that comes close to supporting an argument that that conclusion was erroneous. To the extent that, on this point, Ms Power relies in her undated statement on the police records, those records were already in evidence and neither party made any submission about the relevance of Y’s phone having been the source of the text messages. It is not an error for an Arbitrator not to deal with an issue never argued (Brambles Industries Ltd v Bell [2010] NSWCA 162; 8 DDCR 111).
The undated statement challenges Mr Cuy’s assertion that Ms Power was not visibly crying or overly upset following the incident on 27 November 2012. She asserts that a Mr Greg Thomas, a person not employed by the respondent, witnessed her in tears at the workplace, though she did not say when that occurred. In the absence of evidence from Mr Thomas, that assertion is of limited, if any, weight. So too is Ms Power’s assertion that a Mr Don Knott witnessed Ms Power become “panicked” after receiving a phone call at work from X. While it is open to a witness to give evidence that other people were present when some event occurred, it is not open to a witness to give evidence of what those people saw or heard. Even in a tribunal not bound by the rules of evidence, such as the Commission (s 354(2) of the 1998 Act), such evidence is of no probative value. It is mere speculation and is unacceptable (Pt 15 r 15.2 of the Rules).
Ms Power’s assertion that she became upset when, on 13 December 2012, she was talking about the incident of 27 November 2012 with Mr Cuy and another person is irrelevant to Mr Cuy’s evidence that she did not appear to be upset when he spoke to her about the incident on the day it was alleged to have happened. More importantly, there is nothing in the undated statement that undermines Mr Cuy’s evidence that when he spoke to Ms Power on 27 November 2012 her complaint was about something that X said not about any alleged sexual assault. The Arbitrator specifically noted this point when analysing the evidence at [95]. (The Arbitrator’s analysis of the evidence is discussed in more detail below.)
Dealing with Mr Cuy’s evidence that, in the lead up to Christmas, Ms Power seemed quieter and that she had been fighting with her boyfriend, which was a regular occurrence, and that, at around this time, she had “kicked her boyfriend out of her home as she felt that he didn’t help out and didn’t contribute financially to the household”, Ms Power said in her undated statement that she asked her boyfriend to leave because she was having difficulty coping with what occurred at work.
While the Arbitrator referred to Mr Cuy’s evidence about Ms Power’s boyfriend, it was not a matter that appears in his analysis of the evidence or in his reasons for not accepting her case. Therefore, the additional evidence is of no relevance to the outcome.
I have carefully considered all of the further points in Ms Power’s undated statement that comment on Mr Cuy’s evidence. They are completely irrelevant to the issues before the Arbitrator and have not been the subject of any submissions by Mr Abboud. By way of example, Mr Cuy gave evidence that, after a meeting with Ms Power on 12 December 2012, he installed a camera in the office which could be activated by her at any time. In response to this point, Ms Power said that the camera was located on Mr Cuy’s desk and had to be plugged in and turned on at the power point. It was not discreet and everyone knew about it. The relevance of this evidence was not explained in Mr Abboud’s submissions. It makes no difference to the outcome.
Dealing with X’s statement, Ms Power raised five points. The first is that X’s assertion that he was not in the office on 27 November 2012 was contradicted by the statement by Mr Cuy, who said he saw them talking in the office on that day. The Arbitrator was well aware of the inconsistency in the evidence from X and Mr Cuy on this point and he referred to it at [95]. He clearly did not feel that that point was sufficient to overcome the other difficulties in Ms Power’s case. Therefore, highlighting that point in the undated statement adds nothing to the evidence that was already before the Arbitrator.
The second point states that X’s assertion that he rarely attended the office was incorrect. The relevance of this point was not explained in the submissions and I do not believe it makes any difference to the outcome.
The third point relates to X’s assertion that the only thing that came to mind that “instigated [Ms Power’s] false allegations” was that approximately two weeks prior to 26 November 2012 (presumably he intended to say 27 November 2012), Ms Power contacted him and asked if he would collect a package from Roseworthy SA and deliver it to Broken Hill for her. As Ms Power initially declined to tell him what was in the package, he refused. She then told him that it was for “partying” and he said he wanted nothing to do with it. In her undated statement, Ms Power denies having ever spoken to X about picking up any freight for her. This matter is of no probative value in the assessment of the claim. It neither supports Ms Power nor undermines X on the critical events. It is simply more conflicting evidence.
The fourth point is that X never made any reports to management about Ms Power’s “alleged behaviour”. As X did not claim that he had made any reports to management about Ms Power’s behaviour, this part of Ms Power’s statement is irrelevant.
The fifth and last point raises several unsubstantiated allegations about X’s behaviour in circumstances totally unrelated to the matters before the Commission. They neither advance Ms Power’s case nor undermine the respondent’s case.
Next, Ms Power dealt with an allegation made by some of the respondent’s witnesses that she liked “to tell a good story”. This related, Ms Power said, to her comments about the Milperra Massacre “bikie” gang-related war. She said that she witnessed the activities of the bikie gangs and that a television show about the issue was painting an incorrect picture of those involved, noting that, at that time her boyfriend was a member of a bikie gang. She said it was no secret that her first husband mixed with bikies and drugs, but she had moved on from that life and had a strong dislike for drugs.
On this issue, the Arbitrator noted (at [80]) that a number of witnesses suggested that, in their experience, Ms Power was a “fabulist prone to make up stories”. However, he added, in the next sentence, that “[s]uch material is of little weight”. It follows that this part of the undated statement is irrelevant. So too is Ms Power’s explanation for why she moved to Broken Hill, which was her next point.
Ms Power stated that Andrew Renton, a local delivery driver with the respondent who gave a statement that is in evidence, confirmed and acknowledged “the fears and concerns” she had regarding X. In fact, Mr Renton said that he recalled a conversation with Ms Power a week or two after 27 November 2012. He said:
“17. [Ms Power] stated that [X] had leant over her desk and chair whilst she was seated in the chair and rubbed his hand up her leg. [Ms Power] made no reference to any other part of her body being touched. [Ms Power] asked that I keep this information to myself. I found this comical as I was already aware of [Ms Power’s] allegations at that time as I was not the first person she had told this to. I didn’t question [Ms Power] about the incident nor did I provide her with any advice as to what she should to.
18. In a further conversation I had with [Ms Power] a week or so after this, [Ms Power] asked me to keep an eye on [X] when he was at the depot as she didn’t want to be in the office alone with him. I just took [Ms Power’s] comments on board.”
Though the Arbitrator did not refer to this specific part of Mr Renton’s evidence, the parties having not referred to it in their written submissions, he noted (at [84]) that there was evidence that sometime after 27 November 2012, Ms Power told a number of co-workers what was “meant to have happened” with her and X on that day. Thus, he was aware of Mr Renton’s evidence and clearly took it into account in his assessment of the claim. This part of the undated statement makes no difference to the result.
Ms Power then addressed the evidence from Adam Borlace, another of the respondent’s delivery drivers. His evidence was that, on a date he could not recall, but before the date of the allegations against X, Ms Power arrived at his house “unannounced” at about 4 pm. She was crying and said she had received text messages from X, one of which said “meet me at the pad” (the RTA inspection pad on the boundary of Broken Hill). He encouraged Ms Power to report the messages to the respondent or the police. She replied that she could not do that.
Ms Power said that this incident occurred on a Friday afternoon when she had been left to lock up when Mr Cuy was on leave. She said that Mr Borlace had called her at work claiming that X had called him asking why she was still at work. She said that Mr Borlace was aware of her concerns with X and that she told him she did not feel safe. She asked if she could go to his house instead of going home alone. He agreed. When she arrived, she had a drink with Mr Borlace and his wife and discussed the “situation” with X. Mr Borlace told her of the conversation with X and said how puzzled he was that X knew she was at work alone. She showed Mr Borlace the text message she received not long after his call.
While this evidence is at least relevant, in that it provides some corroboration that Ms Power believed X was responsible for the text messages, it also raises a further inconsistency. Mr Borlace’s evidence that Ms Power arrived “unannounced” is inconsistent with Ms Power’s assertion that Mr Borlace had called her to tell her that X had called him asking why she was still at work. Moreover, on the issue of the text messages, the corroborative value of Mr Borlace’s evidence is, however, of limited weight when one takes into account Mr Cuy’s evidence, which the Arbitrator referred to at length.
The Arbitrator noted, in particular, that Mr Cuy considered he was Ms Power’s friend and that they had socialised together, with their partners, outside work hours. He also noted that Ms Power had told Mr Cuy that she believed that X was responsible for the text messages. Mr Cuy investigated that possibility but could find no evidence linking the text messages to the mobile phone of any of the respondent’s employees. The Arbitrator added, at [75]:
“Notwithstanding the fact that Mr Cuy had formed the view that these text messages were not work related, he continued to provide reassurance and concern for [Ms Power] and also provided her with strategies in dealing with [X] if he was in the office or in the yard alone with her.”
It follows that Ms Power’s reference to Mr Borlace’s evidence, which was already before the Arbitrator, does not demonstrate error by the Arbitrator and does not lead to a different outcome.
Ms Power’s next point relates to a statement by another witness (Ken Evans) that she had, at some undisclosed time, been shot in the foot by her ex-husband with an arrow. It is completely irrelevant to the issues in the case.
Ms Power then highlighted that Stephen Daff, another local delivery driver with the respondent who gave evidence, said that a day or two after the alleged incident he could tell that she was not herself and that she told him about the assault. The Arbitrator referred to and quoted Mr Daff’s evidence at [83]. However, it is clear, from the reading of his decision as a whole, that he did not accept that evidence. Ms Power’s undated statement adds nothing to the evidence that was already before the Arbitrator.
Next, Ms Power comments on the statement in evidence from Robert Murphy, a worker employed by an unrelated company, who had had contact with her when she worked with a previous employer. He gave evidence that Ms Power was flirtatious and chatty and that he had asked her to have coffee with him, which she declined. The next day, his managers accused him of giving Ms Power “a hard time”, harassing her and stalking her. He felt that Ms Power had fabricated her accusations to divert attention from the fact that she had been flirting with him while she was in a relationship. He also gave evidence about photos he took of Ms Power, with her consent, in 2012.
As the Arbitrator did not refer to or rely on Mr Murphy’s statement, it follows that Ms Power’s response to it is irrelevant.
Ms Power then dealt with a statement in evidence from Lawrence Wasley, another of the respondent’s drivers. Again, the Arbitrator did not refer to or rely on Mr Wasley’s statement, presumably because it deals with issues that are completely irrelevant to the claim. It follows that Ms Power’s response is also irrelevant.
Last, Ms Power said that the “whole report is not based on any real facts or evidence” and was “merely speculation and the pitting of colleagues [sic] words against mine”. She said that “they are relying on the evidence of Mr Borlace, Mr Wasley and Mr Evans, all of whom are very close friends and have worked for a number of years together”. Further, she said that Mr Borlace and Mr Cuy had developed a close out-of-work relationship. Referring to her having been, evidently, the source of a lot of gossip, Ms Power said “[a] lot of it is purely fictional and mainly gossip and nothing is really based on fact”.
I have assumed that Ms Power’s reference to “the whole report” was reference to the factual investigation by the respondent’s insurer. However, her assertions add nothing to the case and are no more than a general comment about the evidence, rather than additional evidence. They are of no probative value.
Having reviewed the undated statement in detail, I am firmly of the view that its admission into evidence would not have affected the outcome and has not established that the Arbitrator’s decision is affected by error. It was clearly prepared without the benefit of legal advice. It repeats issues that were already covered in the evidence before the Arbitrator, or raises matters that are completely irrelevant to the assessment of that evidence. Mr Hickey’s (apparent) decision not to seek leave to rely on it was appropriate. It is of no evidentiary value and, if admitted into evidence on appeal, would not lead to a different result.
For the reasons explained above, the first two grounds of appeal are baseless and are rejected. As the result would be the same if the undated statement were admitted as it would be if it were excluded, the exclusion of it will cause no injustice let alone a substantial injustice in the case. The application to rely on the undated statement as additional evidence is refused.
THE EFFECTS OF THE CLAIM ON X
Submissions
Mr Abboud submitted that the Arbitrator’s regard to the ramifications of his decision on X “are irrelevant and should not have formed part of his judgment”. He said that the accusations against X are relevant in determining whether the injury occurred during the course of Ms Power’s employment or arose out of her employment and whether employment was a substantial contributing factor to the injury.
Mr Abboud argued that the fact that the work injury involved a person not a party to the proceedings “should not be a bearing upon the Arbitrator as to whether a higher onus of proof should fall upon [Ms Power]”. He said that the Arbitrator “should be confined to the normal tests required to make his decision and should not be swayed by the ‘devastating consequences to his reputation and social life in a country town’” ([69]). This should have had no bearing upon the Arbitrator’s decision and as such he made an error of law.
Mr Stockley submitted that Ms Power did not identify why the Arbitrator’s approach was impermissible. He said that the Arbitrator’s approach was sound and disclosed no error.
Discussion and findings
This ground relates to the Arbitrator’s application of the principles in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 (Briginshaw). To properly understand it, it is necessary to consider the Arbitrator’s reasons in detail. Unfortunately, this involves some repetition of matters covered earlier in this decision.
At [66], the Arbitrator quoted the following passage from Starkie’s Law of Evidence, quoted by Dixon J in Briginshaw at 360–361:
“But in many cases of a civil nature, where the right is dubious, and the claims of the contesting parties are supported by evidence nearly equipoised, a mere preponderance of evidence on either side may be sufficient to turn the scale.”
At [67], the Arbitrator recorded Dixon J’s response to this passage, also at 361 (which I have corrected for several typing errors):
“This mode of stating the rule for civil issues appears to acknowledge that the degree of satisfaction demanded may depend rather on the nature of the issue.”
The Arbitrator then quoted (at [68]) the following passage from the same judgment in Briginshaw, at 362:
“But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.”
The Arbitrator then said, at [69]:
“Briginshaw is a case the authority of which has stood the test of time. [X] is not a party to these proceedings and is not directly in peril from an adverse finding against him. However, [Ms Power] has made a very serious allegation against him as to what happened on 27 November 2012. Even though these are civil proceedings between different parties to [Ms Power] and [X], a finding that [Ms Power] was subject to unwanted sexual comments and physically assaulted by [X] on the 27 November 2012 could have devastating consequences to his reputation and social life in a country town. The quote from Briginshaw in paragraph [67] above is therefore foremost in my mind in determining whether I have the requisite ‘reasonable satisfaction’ on the balance of probabilities that the allegations made by [Ms Power] against [X] took place. ...” (emphasis added)
The Arbitrator then reviewed the relevant evidence in some detail. He quoted extensively from Ms Power’s unsigned statement, and noted X’s firm denials of each allegation made against him. He also noted X’s assertion that he was not in the respondent’s office at any time on 27 November 2012, something that was, as I have previously noted, and the Arbitrator acknowledged, inconsistent with Mr Cuy’s evidence.
The Arbitrator also quoted extensively from Mr Cuy’s statement. That statement accepted that Ms Power had complained about text messages from February 2012, which she believed had been sent by X, but added that Mr Cuy had been unable to identify the mobile phone from which the messages had been sent as belonging to anyone employed by the respondent. Mr Cuy therefore formed the view that they were not work related. Notwithstanding that view, Mr Cuy said, and the Arbitrator appears to have accepted, that he continued to provide reassurance and concern for Ms Power, something that was inconsistent with certain medical histories Ms Power provided. (The histories recorded by Dr Ali and Dr Synnott suggested that Mr Cuy had harassed Ms Power and made inappropriate comments to her. The Arbitrator correctly noted that those allegations were not in Ms Power’s unsigned statement and formed no part of the claim pleaded in the Amended Application to Resolve a Dispute, or in any other particulars about the claim.)
The Arbitrator then noted Mr Cuy’s evidence about the events on 27 November 2012, which was that Ms Power had complained about something X allegedly said, not about any alleged assault (see [86] above) and that Ms Power was not crying or visibly upset when she made that complaint. Mr Cuy said that Ms Power took sick leave on 19 December 2012 and, on her return to work on 7 January 2013, she was “notably agitated” and “jumpy” around any male who walked into the office.
The Arbitrator referred to the evidence from Mr Renton (at [80]) and Mr Borlace (at [81]–[82]), which was not supportive of Ms Power’s version, and also the evidence from Mr Daff (at [83]), which was supportive. He also noted that there was evidence that Ms Power told a number of co-workers what was meant to have happened on 27 November 2012.
The Arbitrator noted (at [85]) Mr Stockley’s submission that Ms Power had seen Dr Menzies on 29 November 2012, but made no reference until 20 December 2012 to any of the events said to have happened on 27 November 2012. He also noted Ms Power’s evidence that she tried to tell someone but “just couldn’t”.
The Arbitrator then dealt (at [86]–[91]) with the evidence from Dr Ali, noting that his history referred to harassment, bullying and intimidation, but made no mention of the alleged assault, and recorded that Ms Power gave no past history of depression or any other problem. He noted (at [92]) Dr Synnott’s history that Ms Power had psychological difficulties following a double mastectomy in 1999, which was an incomplete history of her previous psychological difficulties.
Against this background, the Arbitrator set out his analysis and conclusions, from [93] to [96]. His reasoning was as follows:
(a) in assessing the “reliability” of Ms Power’s evidence, he took into account what she “did and did not tell the doctors, in particular, Dr Menzies, Dr Ali and Dr Synnott” ([93]);
(b) those doctors either were not provided by Ms Power “with a complete and frank account of her past psychiatric problems or were given an account about matters which [Ms Power] said occurred to her at work which were not in her evidence or were not pleaded” ([93]). These matters included that X had stalked her before and after 27 November 2012, that X and other workers had bullied her, that her boss (Mr Cuy) was unsupportive and had “tried to hit on her and made inappropriate comments” ([93]);
(c) considering all this material and, in particular, considering the allegations made (in medical histories but not in the pleadings) as to what caused Ms Power’s problems at work – including (allegations) against other co-workers and, more particularly, the allegation that her immediate supervisor (who must be Mr Cuy) was unsupportive of her and was also making comments of a sexual nature to her – the Arbitrator found “it difficult[,] on the balance[,] to accept that the event took place on 27 November 2011 [sic, 2012] in the manner described by [Ms Power]” ([94]);
(d) the Arbitrator acknowledged (at [95]) that X’s assertion that he was not in the office on 27 November 2012 was inconsistent with Mr Cuy’s evidence, which was that X had been present but the exchange between him and Ms Power appeared to be friendly;
(e) the comments Ms Power claims that X made to her on 27 November 2012 did not appear, on Mr Cuy’s evidence, to provoke any distress when she told Mr Cuy of them ([95]);
(f) one would have expected that if the events on 27 November 2012 occurred (in the manner alleged by Ms Power) Ms Power “would have been visibly distressed and would have clearly shown something more than what she exhibited on that day to Mr Cuy and to other employees” ([95]);
(g) it was “hard to believe that [Ms Power] was prepared to tell Mr Cuy what [X] said but not what [X] is alleged to have done, if in fact [X] did those things” ([95]);
(h) it was “more telling” that Ms Power “conferred with her general practitioner only two days later and said nothing about the events said to have occurred on 27 November 2012” ([95]), this was despite the fact that, within a few days of the alleged event, Ms Power told some other co-workers (about it) and, in a few weeks, was telling many co-workers in great detail what had occurred on that day;
(i) on the “onus question [Ms Power] has failed to discharge the onus which I have described, which was upon her in making such a serious allegation against a co-worker” ([95]), and
(j) there would be an award for the respondent.
The above findings were open on the evidence and disclose no error. The significant matters were the various inconsistencies in Ms Power’s account and the fact that the case recorded by Dr Ali – that Ms Power had been subjected to harassment, bullying and intimidation – was not the case pleaded. These matters were fatal to the claim and well justified the Arbitrator’s conclusion that Ms Power had failed to discharge the civil standard of proof. They were not addressed in the undated statement, and did not depend on the effects of the claim on X.
What is important, with regard to the current ground of appeal, is that the Arbitrator applied the correct civil standard of proof, namely on the balance of probabilities. That is clear from his statement at [94] that he found “it difficult[,] on the balance[,] to accept that the event took place on 27 November 2011 [sic, 2012] in the manner described by [Ms Power]”. It is also confirmed by his statement at [69], where he referred to the need to have “‘reasonable satisfaction’ on the balance of probabilities”.
In other words, the Arbitrator’s conclusion was that, on the balance of probabilities, Ms Power had not made out her case. In view of the issues in the case, which I have fully canvassed above, that conclusion was open and disclosed no error. The Arbitrator’s analysis of the evidence, and ultimate conclusion, was not based on the potentially damaging effect on X of accepting Ms Power’s version of events. Rather, it was based on an objective assessment of the available evidence and the significant inconsistencies in that evidence.
Moreover, the Arbitrator’s conclusion was consistent with the passage he quoted from Briginshaw at [68] (reproduced in full at [123] above) that the “seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal”. Neither that statement, which is effectively codified in s 140 of the Evidence Act 1995 (NSW), nor the Arbitrator’s application of it, involved a departure from the civil standard of proof.
As explained by Mason CJ, Brennan, Deane and Gaudron JJ in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; 67 ALJR 170 at 171:
“the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary ‘where so serious a matter as fraud is to be found’. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.”
The Arbitrator’s approach was consistent with this statement and disclosed no error. It did not involve the application of a different standard of proof and did not involve taking into account irrelevant matters.
UNDUE WEIGHT TO HEARSAY
Submissions
Mr Abboud submitted that (at [80]) the Arbitrator conceded that the statements relied on by the respondent contain “hearsay, supposition or suspicion”. Despite this, the Arbitrator quoted over 10 paragraphs from Mr Cuy’s statement and referred to other statements at [71] and [80]–[83]. Mr Abboud contended that the Arbitrator made an error of discretion by applying undue weight to evidence that contained “hearsay, supposition or suspicion”.
Further, Mr Abboud argued that had the undated statement been considered the Arbitrator would have had available to him evidence that went directly to the “hearsay, supposition or suspicion” of the evidence of the respondent. Further, the two “primary statements” the Arbitrator relied upon, that of Mr Cuy and X, contradict each other on an important fact, namely whether X was in the office on 27 November 2012.
Discussion and findings
Mr Abboud’s submissions, made without any relevant reference to the evidence, have taken the Arbitrator’s statement out of context and have not established that the Arbitrator erred in his approach or conclusion. Again, this discussion involves some repetition of matters previously canvassed.
The first point to note is that the Commission is not bound by the rules of evidence (s 354(2) of the 1998 Act) and is therefore permitted to consider evidence that a court would reject as hearsay. The weight to be attached to that evidence is another matter. Evidence should be logical and probative, and relevant to the facts and issues in dispute. However, as previously noted, evidence based on speculation or unsubstantiated assumptions is unacceptable (Pt 15 r 15.2).
The relevance of the complaint that the Arbitrator quoted “over 10 paragraphs” from Mr Cuy’s evidence has not been explained. Mr Cuy’s evidence, which was based on what he saw, heard and did, was clearly relevant to the issues in dispute. Moreover, Mr Hickey did not object to any part of Mr Cuy’s evidence, or to any of the evidence tendered by the respondent, on the ground that it contained hearsay or that it was based on supposition or suspicion. It follows that, in the Arbitrator’s assessment of the claim, he was entitled to consider Mr Cuy’s evidence.
Dealing with the evidence from Ms Power’s co-workers, the Arbitrator said that a lot of what they said about the incident, or about Ms Power, was “hearsay, supposition or suspicion” ([80]) about her and her motives. A number of those witnesses suggested that, in their experience, Ms Power was a “fabulist prone to make up stories” ([80]). The Arbitrator immediately dismissed such material because it “was of little weight” ([80]).
However, the Arbitrator then said that there were some “aspects of some of the other co-workers’ material which is of some relevance and weight” ([80]). He then referred to the evidence from Mr Renton (at [80]) and Mr Borlace (at [81]) that they had not witnessed any incident on 27 November 2012. He also noted (at [83]) Mr Daff’s evidence that, a day or two after 27 November 2012, Ms Power had complained to him that X had assaulted her.
These parts of the statements from these witnesses were not “supposition or suspicion”. They were statements of what they observed, or what they had been told by Ms Power. The evidence from Mr Daff corroborated Ms Power’s version of the events on 27 November 2012, though the Arbitrator, for reasons given, did not accept Ms Power’s version. Mr Abboud has referred to no passage of the Arbitrator’s analysis where he impermissibly relied on hearsay, supposition or suspicion in support of his conclusion. The analysis of his reasons at [131] above demonstrates that he did not do so. Mr Abboud’s submission on this point is untenable and is rejected.
The submission that had the Arbitrator considered the undated statement he would have had available to him “evidence which went directly to the ‘hearsay, supposition or suspicion’” of the evidence of the respondent, is based on the false assumption that the Arbitrator relied on such material in reaching his conclusion. Clearly, he did not. Indeed, he was careful to avoid such material. Moreover, for the reasons explained above, Ms Power’s undated statement does not advance her case nor does it establish that the result would be different if it had been admitted.
CONCLUSION
This appeal was completely without merit. It failed to consider how the arbitration proceeded, how arbitrations in general are conducted in the Commission, the content of the undated statement, and the Arbitrator’s reasons overall. The undated statement makes no difference to the result. The Arbitrator’s decision is not affected by any relevant error.
DECISION
Time to appeal is extended until 2 December 2014.
The Arbitrator’s determination of 3 November 2014 is confirmed.
COSTS
No order as to costs.
Bill Roche
Deputy President
12 March 2015
I, STEVEN HAMPSON, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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