Rasia v University of Sydney (No 2)
[2011] NSWWCCPD 29
•2 February 2011
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPLICATION FOR RECONSIDERATION OF A DECISION OF THE COMMISSION CONSTITUTED BY A PRESIDENTIAL MEMBER | |||||
| CITATION: | Rasia v University of Sydney (No 2) [2011] NSWWCCPD 29 | ||||
| APPELLANT: | Jerome Rasia | ||||
| RESPONDENT: | University of Sydney | ||||
| APPLICANT FOR RECONSIDERATION: | Jerome Rasia | ||||
| INSURER: | Allianz Australia Workers Compensation (NSW) Limited | ||||
| FILE NUMBER: | A1-4821/10 | ||||
| ARBITRATOR: | Mr Paul Sweeney | ||||
| DATE OF ARBITRATOR’S DECISION: | 8 October 2010 | ||||
| DATE OF APPEAL DECISION: | 2 February 2011 | ||||
| DATE OF RECONSIDERATION DECISION: | 27 May 2011 | ||||
| SUBJECT MATTER OF DECISION: | Section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998; application for reconsideration; expert evidence; relevance of expert opinion; matters outside area of expertise | ||||
| PRESIDENTIAL MEMBER: | Deputy President Kevin O’Grady | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Self-Represented Worker | |||
| Respondent: | Moray & Agnew Solicitors | ||||
ORDERS MADE ON RECONSIDERATION: | The application for reconsideration with respect to the Commission’s decision in Rasia v University of Sydney [2011] NSWWCCPD 5 is refused. The findings and orders in that matter are confirmed and the application herein is dismissed. No order as to costs of the application for reconsideration. | ||||
BACKGROUND
Mr Jerome Rasia has made an application seeking reconsideration of my findings and orders made on appeal on 2 February 2011 in Rasia v University of Sydney [2011] NSWWCCPD 5 (the appeal decision). The application is brought pursuant to the provisions of s 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) which provides:
“The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission.”
The appeal decision addressed a challenge made by Mr Rasia to a decision of Arbitrator Sweeney concerning an application brought by Mr Rasia against the University of Sydney (the respondent) seeking compensation benefits. The Arbitrator’s decision, in which an award was made for the respondent employer, was made on 8 October 2010. The Arbitrator’s decision was confirmed on appeal. The evidence before the Commission was summarised by the Arbitrator in the course of his Reasons and by myself in the course of the appeal decision.
The present application has been filed with the Commission by Mr Rasia in person. He has not had the benefit of professional legal representation since the conclusion of proceedings before the Arbitrator. The registry of the Commission has forwarded to Mr Rasia a copy of the Registrar’s Guideline – Requests for Reconsiderations under ss 329(1A), 350(3) and 378 of the 1998 Act. That Guideline, generally, appears to have been followed by Mr Rasia.
Written submissions have been provided in support of the application. Those submissions are found in a 17 page document which includes at [12] a list of documents described as “new evidence”. Those documents, five in number, are also listed at Part 7 of the application where they are described as “Supporting documents and information”. There is no request or application made by Mr Rasia for the admission of those documents as being new evidence relevant to matters raised concerning reconsideration of the appeal decision. However it is reasonably clear that Mr Rasia wishes that material to be in evidence on this application. The admission of those documents is addressed below.
There is evidence before the Commission that the application seeking reconsideration and the accompanying documents have been served by Mr Rasia upon the respondent and its insurer. A direction issued by the Registrar to the parties on 17 March 2011 required that any Reply and any supporting documents be lodged with the Commission by 28 April 2011. There is evidence, being a Certificate of Service, that Mr Rasia has served that direction upon the respondent and its insurer.
No Reply or other communication has been received by the Registry from the respondent since the issue and service of that direction.
RECONSIDERATION ON THE PAPERS
Section 354(6) of the 1998 Act provides:
“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.”
At page 1 of Mr Rasia’s “Statement of Support for Reconsideration of Appeal” the following appears:
“It is … assumed all the evidence before the Arbitrator would be before the Presidential Member for Application for Leave to Appeal (sic)”.
I assume that Mr Rasia intended to affirm that the reconsideration would be conducted having regard to all material before the Commission which had been considered by the Arbitrator and on appeal as well as that documentation filed in respect of the present application.
Notwithstanding the absence of any submissions put by the respondent I am satisfied that I have sufficient information to proceed on the papers and that this is the appropriate course to adopt in dealing with the application seeking reconsideration.
THE POWER TO RECONSIDER
The scope of the Commission’s power to reconsider a decision is expressed in broad terms in s 350(3) of the 1998 Act and the Act contains no provision limiting that power. Having regard to earlier authorities which concerned the construction and application of similar provisions including s 36(2) of the Workers Compensation Act 1926 (the 1926 Act) and s 17(4) of the Compensation Court Act 1984 (the Court Act), the legislative predecessors of s 350(3), and more recent authority, there is no doubt that reconsideration may involve an examination of changed circumstances, or of fresh evidence concerning the original circumstances considered at the time of the original decision (see Hardaker v Wright & Bruce Ltd [1962] SR (NSW) 244 (Hardaker); Maksoudian v J Robins & Sons Pty Ltd [1993] NSWCC 36; 9 NSWCCR 642 and Samuel v Sebel Furniture Ltd [2006] NSWWCCPD 141; 5 DDCR 482 (Samuel)).
The nature of the power granted by s 350(3) was the subject of careful examination by Roche ADP (as he then was) in Samuel (between [38] and [58]). I have earlier expressed my agreement with those matters stated in Samuel (Wang v Botany View Hotel Limited [2009] NSWWCCPD 63 at [15]). One matter which is of particular relevance to the circumstances of the present application is that which was stated in Samuel at [58.6]:
“given the broad power of ‘review’ in s 352 (which was not universally available in the Compensation Court of NSW) the reconsideration provision in s 350(3) will not usually be the preferred provision to be used to correct errors of fact, law or discretion made by Arbitrators”
Commentary by CP Mills in his text Workers Compensation (NSW), second edition (1978) remains pertinent to an analysis of the Commission’s power to reconsider a decision. It was stated, following a consideration of the decision in Hardaker, (at 416):
“Their Honours emphasized the distinction between the existence of the power and the occasion of its exercise: public interest demands that litigation should not proceed interminably; a party must produce all the available evidence in support of his claim at the original hearing, and the courts must be on their guard to see that the same matter is not re-litigated again and again. However, it is clear that the legislature intended to leave the Commission with the power of review in order to see that justice is done between the parties.”
ADMISSION OF NEW EVIDENCE
As noted at [4] above Mr Rasia appears to rely upon the five documents which are identified at Part 7 of his application. I note at the outset that three of those documents are in evidence before the Commission, having been admitted by the Arbitrator at the hearing before him. Those documents are:
(a) Doctor Elizabeth Scott – a business card;
(b) Ms Megan Hickie – casual contract of engagement dated 9 January 2006, and
(c) Ms Amelia Cooper – casual contract of engagement dated 6 February 2006.
The remaining two documents relied upon by Mr Rasia are:
(a) a payslip dated 16 August 2007 issued to Mr Rasia by the respondent which includes a notation that his ‘classification’ was that of ‘Finance Officer’, and
(b) a report of Dr Natalia P Chapanis, clinical psychologist, dated 3 January 2011.
The respondent has made no submission concerning the reconsideration application and thus there is no objection to admission of the “new evidence”. The Commission and its predecessors have, as a matter of practice, adopted the approach of the Supreme Court of NSW concerning admission of new evidence. In the present context of Mr Rasia’s application for reconsideration, the Commission is also guided by relevant authority concerning admission pursuant to s 352(6) of fresh or additional evidence on appeal. A helpful summary of those matters requiring consideration concerning the admission of new evidence is made by the President, Keating DCJ, in Abou-Sleiman v P & V Masonry Pty Ltd [2011] NSWWCCPD 21 (Abou-Sleiman). I note that, following recent amendment of the subsection, the matters concerning reasonable diligence mentioned by his Honour are now incorporated into the Act. His Honour stated (between [32] and [35]:
“32. In Haider v J P Morgan Holdings Aust Ltd [2007] NSWCA 158 (Haider), Basten JA drew a distinction between “new evidence” referred to in Practice Direction 6 and “evidence in addition to or in substitution” as set out in s 352(6). The Court of Appeal considered Practice Direction 6, which established the conditions required to be satisfied for the admission of “fresh evidence”, but held that a more flexible test applied to “evidence in addition to or in substitution for”. In Haider, Basten JA was dealing with Practice Note 6 as it then was. The Practice Note was subsequently reissued on 15 November 2007 and is in materially different terms to those considered by His Honour. It now refers to ‘each application to introduce fresh or additional evidence on appeal’ whereas the former practice note dealt with the procedural steps required to introduce ‘new evidence on appeal’.
33. In Akins v National Australia Bank [1994] FCA 1209; 34 NSWLR 155, an appeal brought from a judgment following a trial without a jury in the court, Clarke JA (Sheller JA and Powell JA agreeing) stated (at 160) that three conditions need to be met before ‘fresh evidence’ can be admitted:
‘These are: (1) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) The evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) The evidence must be credible.’
34. In Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; 53 NSWLR 116, (Nowlan), Heydon JA stated at [15]:
‘Even if the three tests stated in the Akins case are applicable and are not satisfied, a question remains: is it just to admit the further evidence in this case?’
35. In Naidu v Able Manufacturing Pty Ltd [2007] NSWWCCPD 237, Deputy President Roche said (at [26]), referring to Haider and Nowlan:
‘In considering an application to rely on fresh evidence or further evidence on appeal, the Commission must balance two competing requirements: the public interest that litigation should not continue indefinitely against the need to ensure that justice is done in all the circumstances of the case. In balancing these matters the Commission must also keep in mind its statutory duty to act ‘according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms’ (s 354(3) of the 1998 Act’.”
In the circumstances of the present case I consider that it is in the interests of justice that both the payslip dated 16 August 2007 and the report of Dr Chapanis dated 3 January 2011 be admitted into evidence on this application. Whilst Mr Rasia has plainly failed to address those matters which are raised in Abou-Sleiman set out above, admission of the documents is not opposed. The report of Dr Chapanis post dates the hearing before the Arbitrator. I note in passing that other earlier reports of Dr Chapanis, considered by the Arbitrator, are in evidence. The report of Dr Chapanis which Mr Rasia seeks to adduce indicates that treatment by that practitioner continued following the arbitral hearing. Bearing in mind the provisions of s 354(3) of the 1998 Act, which require that “the Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms”, it is appropriate that Dr Chapanis’s evidence be admitted and that its relevance or otherwise to the merits of Mr Rasia’s application be considered.
The payslip dated 16 August 2007 may have some relevance to a consideration of matters raised by Mr Rasia in his submissions in support of the application. Given that Mr Rasia’s evidence concerning his classification had been considered in the course of the appeal decision, I consider it appropriate that the document be admitted on this application notwithstanding the availability of technical objections and Mr Rasia’s failure to address matters relevant to the admission of new evidence.
Mr Rasia’s Submissions
At Part 1 of the application Mr Rasia enumerates three “matters in dispute”. Those matters are restated at page 1 of the “statement of support” in the following terms:
“A. Evidence was misinterpreted leading to unfair application of s 11A of the Workers Compensation Act 1987.
B. Important evidence was not given to [sic] sufficient weight by the original Arbitrator and subsequently by the Presidential Member.
C. Evidence from statements was relied upon by witnesses who have questionable credibility, leading to an unfair application of s 11A of the Workers Compensation Act 1987.”
The argument advanced by Mr Rasia in respect of each “matter in dispute” suggests error on the part of the Arbitrator. Attention is directed to the manner in which the evidence was evaluated by the Arbitrator and criticism of his conclusions is advanced. Most of the complaints raised concern suggested errors of fact.
The arguments advanced make reference to the suggested unreasonable actions of the respondent with respect to procedures adopted by it in managing aspects of Mr Rasia’s employment including performance appraisal/performance management and termination. There is repeated assertion by Mr Rasia of there being a breach by the respondent of its duty to afford him “procedural fairness and natural justice”.
It is also argued by Mr Rasia that “important” evidence was not given sufficient weight both by the Arbitrator and by myself on appeal. It is in this context that reference is made to the “new” evidence of Dr Chapanis. The report of Dr Chapanis dated 3 January 2011 is “material”, it is argued, “as it explains the relationship between Dr Chapanis and [Mr Rasia] over the period of time the events occurred, which qualifies her to give an informed opinion over other medical personnel and professionals who have had little contact with [Mr Rasia]”.
Reliance is placed by Mr Rasia upon the new evidence, being the payslip, to remove doubt concerning the veracity of his evidence. Further argument is raised which appears to challenge the matters summarised in the appeal decision at [82].
Lengthy and detailed submissions are put by Mr Rasia which seek to challenge the credit of Mr Dodson, Mr Shenoy and Professor Murphy. The basis of argument advanced is the state of the evidence before the Arbitrator, which evidence was reviewed on appeal.
DISCUSSION
The Commission’s discretion to reconsider the decision challenged by Mr Rasia will only be exercised once it is satisfied that, having regard to facts or circumstances not earlier considered, some error or omission has occurred and that justice requires that the decision be corrected. There has, in my opinion, been no material presented on this application that can in any manner provide a basis to argue that the Commission’s discretion should be exercised.
Mr Rasia has exercised his right to bring an appeal against the Arbitrator’s decision pursuant to s 352 of the 1998 Act. That appeal failed. Many, if not all, of the complaints raised on this application have been earlier argued both before the Arbitrator and on appeal.
In reaching this conclusion I have taken into consideration the “new” evidence relied upon by Mr Rasia. The payslip admitted on this application provides evidence that the respondent’s payroll authority has Mr Rasia’s classification noted as being “financial officer”. That notation conflicts with other evidence as noted in the appeal decision (at [82]) and with Mr Rasia’s own evidence found in his statement dated 11 June 2010 which was in evidence before the Arbitrator (at [7.5]).
The question concerning the correct description of Mr Rasia’s position was addressed on appeal in the course of an evaluation of the evidence. The facts concerning the job description were not fundamental to the task of review of the Arbitrator’s decision. The only relevance of those matters concerned the weight to be given to the evidence of Mr Rasia generally. In the context of the present application, the new evidence provides no basis to question those matters stated in the appeal decision and certainly do not provide a basis for reconsideration of that decision.
The report of Dr Chapanis dated 3 January 2011 is relied upon by Mr Rasia as a basis to argue that the Arbitrator, whose views were confirmed on appeal, erred in accepting the opinion of Ms Louise Morrow, clinical psychologist. Ms Morrow diagnosed Mr Rasia as suffering a Major Depressive Disorder. That diagnosis was not in dispute. The factors contributing to that disorder were, in Ms Morrow’s opinion, the respondent’s performance management and the termination of Mr Rasia’s employment.
The error suggested by Mr Rasia is that Ms Morrow had formed an erroneous view of the relevant facts which was similar to those factual conclusions reached by the Arbitrator. It is argued that, given the error as to the facts made by both Ms Morrow and the Arbitrator, the conclusion reached by the Arbitrator that the respondent’s conduct was reasonable was made in error.
The report of Dr Chapanis details her “credentials” and experience. The report also contains an assertion by Dr Chapanis that she is “aware of the kind of politics that can go on even in a prestigious University”.
Dr Chapanis details in her report her past experience in the United States of America where, in 1964, she reported on the work of a Californian Professor who “used underhand tactics to prevent others from disagreeing with him”. It seems her findings were published, that the Professor in question had a “career change” and that subsequently Dr Chapanis had been contacted by “many people in other universities reporting instances of abuse”.
Dr Chapanis’s report includes an assertion by her “that I find [the respondent] in blatant disregard for the rights of [Mr Rasia]”. Her report includes a summary of “in depth psychological and psychiatric evaluations” of Mr Rasia in the course of which Dr Chapanis states: “I am convinced Mr Rasia was abused by Mr Dodson”. The report also contains an expression of opinion that the Arbitrator’s approach to the evaluation of Mr Dodson’s evidence and demeanour permits an inference that he, the Arbitrator, was “not impressed with either the demeanour or oral evidence of Mr Rasia”. Dr Chapanis forms a conclusion, with reluctance, that the Arbitrator “is not very familiar with the behaviour of the Abuser v Abused in a confrontational court scenario”. Dr Chapanis proceeds to express a view that the Arbitrator was “biased” given his acceptance of the respondent’s “version of events while disregarding the views of two mental health professionals”. A “very serious miscarriage of justice” is asserted in the final paragraph of that report.
Leaving aside for the moment the relevance of the contents of the report to the Commission’s task of dealing with Mr Rasia’s application for reconsideration, it must be stated that the evidence is of no probative value to the Commission concerning the evaluation of the conflicting evidence of Mr Rasia and Mr Dodson. There is no question that Dr Chapanis is suitably qualified to express an opinion as to matters within the area of her expertise. Her experience is something that may be taken into account when assessing the probative value of such expert opinion. It is clear that Dr Chapanis has very considerable training and experience in her field. However, that expertise and experience does not afford a sufficient basis for the matters stated in the report which I have attempted to summarise immediately above.
The views as expressed by Dr Chapanis may be seen to be open to the same criticism directed to the evidence of a psychologist which was excluded by a trial judge, which exclusion was upheld by the Court of Criminal Appeal and by the High Court, by majority, in HG v the Queen (1999) 197 CLR 414 (HG). The evidence which the accused wished to adduce in HG concerned the psychologist’s opinion that sexual abuse complained of by a child had occurred not when she was living with the accused, but some years earlier when she was in the custody of her father. It was stated by Gleeson CJ that the psychologist’s opinion on that matter, following consideration of the contents of his report and his evidence given at committal:
“was based on a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise of a psychologist.”
Whilst the Commission is not bound by the rules of evidence, the manner in which the Commission informs itself of any matter is regulated by the provisions of s 354 of the 1988 Act and by Pt 15 r 15.2 of the Workers Compensation Commission Rules 2010. As stated by McColl JA in South Western Sydney Area Health Service v Edmonds (2007) 4 DDCR 421; NSWCA 16 (at [128]) “Rule 70 [now Pt 15 r 15.2] broadly reflects fundamental principles of the common law concerning the admissibility of evidence”. That rule provides as follows:
“15.2 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.”
Whilst the report of Dr Chapanis is in evidence, its admission was permitted to enable a determination as to whether it was relevant to Mr Rasia’s application for reconsideration. Dr Chapanis purports to express opinions touching on the credit of individual witnesses and reaches conclusions concerning matters well outside her field of expertise. As was stated by Gleeson CJ in HG (at [44]):
“[44] This was not a trial by jury, but in trials before judges alone, as well as in trials by jury, it is important that the opinions of expert witnesses be confined, in accordance with s 79, to opinions which are wholly or substantially based on their specialised knowledge. Experts who venture ‘opinions’ (sometimes merely their own inference of fact), outside their field of specialised knowledge may invest those opinions with a spurious appearance of authority, and legitimate processes of fact-finding may be subverted. The opinions which [the psychologist] was to be invited to express appear to provide a good example of the mischief which is to be avoided.
[45] The evidence in question was not admissible as opinion evidence.”
Much of what is stated by Dr Chapanis appears to be expressed as an advocate, a role expressly eschewed by Dr Canaris (see report dated 22 June 2009 at page 4), and is unhelpful. Many of the conclusions stated concern disputed facts which required adjudication in accordance with law by the Arbitrator. His findings have been confirmed on appeal.
There is, in my opinion, no evidence found in the report of Dr Chapanis which would in any way provide a basis for reconsideration of the appeal decision.
There being no material presented by Mr Rasia upon which any reconsideration of the appeal decision may be embarked, the application for reconsideration should be refused.
DECISION
The application for reconsideration brought pursuant to s 350(3) of the 1998 Act with respect to the Commission’s decision in Rasia v University of Sydney [2011] NSWWCCPD 5 is refused. The findings and orders in that matter are confirmed and the application herein is dismissed.
COSTS
No order as to costs of the application for reconsideration.
Kevin O’Grady
Deputy President
27 May 2011
I, PENELOPE FLEMING, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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