Safi v Australian Concert & Entertainment Security
[2007] NSWWCCPD 128
•31 May 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Safi v Australian Concert & Entertainment Security [2007] NSWWCCPD 128
APPELLANT: Jada Safi
RESPONDENT: Australian Concert & Entertainment Security
INSURER:Vero Workers Compensation
FILE NUMBER: WCC17615-05
DATE OF ARBITRATOR’S DECISION: 1 March 2006
DATE OF APPEAL DECISION: 31 May 2007
SUBJECT MATTER OF DECISION: Absence of transcript of arbitral proceedings; error of law; error of fact; weight of evidence; inadequate reasons for decision.
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION: Appellant: Carroll & O’Dea Lawyers
Respondent: Turks Legal Lawyers
ORDERS MADE ON APPEAL: The decision of the Arbitrator, dated 1 March 2006, is revoked. The matter is remitted to another Arbitrator for determination afresh in accordance with these Reasons.
No order is made as to the costs of this appeal.
BACKGROUND
Ms Jada Safi, the Appellant Worker, was born on 14 December 1962. She commenced employment with Australian Concert & Entertainment Security (ACES), the Respondent Employer, on 3 June 2002 as a security guard.
Vero Workers Compensation (‘Vero’) was ACES’s Insurer at all relevant times.
Ms Safi claims that on 8 December 2004 she sustained an injury to her back while moving barricades at the Sydney Cricket Ground. There were no witnesses to the incident she describes. Ms Safi states that she informed her supervisor after finishing the task at hand.
Ms Safi states that on 26 December 2004 while at work, the pain in her back became unbearable. She informed a colleague who was present and then contacted her supervisor, Mr Cory McIntyre. Ms Safi completed the shift and went directly to see a doctor who provided her with a medical certificate (not a WorkCover certificate). She underwent an xray examination on 28 December 2004.
On 31 December 2004 Ms Safi attended work with a medical certificate (not a WorkCover certificate) certifying that she was unfit for work. She gave the certificate to Mr Anthony Chan who contacted Mr McIntyre. Ms Safi alleges that Mr McIntyre told Mr Chan that he was “sick of this” and asked Mr Chan to remove her from the site. Ms Safi left and did not return to work after this incident.
On 8 April 2005 Ms Safi submitted a workers compensation claim to Vero in relation to the injury allegedly sustained on 8 December 2004. On 16 May 2005 Vero notified Ms Safi that further liability for compensation benefits had been declined on the basis that her claim did not satisfy the provisions of section 9A of the Workers Compensation Act 1987 (‘1987 Act’).
Ms Safi lodged an ‘Application to Resolve a Dispute’ in the Workers Compensation Commission (‘the Commission’) on 14 October 2005 seeking weekly payments of compensation from 27 December 2004 to date and continuing, and medical expenses pursuant to section 60 of the 1987 Act.
Arbitration hearings were held on 8 February 2006 and 17 February 2006. The Arbitrator issued a ‘Certificate of Determination’ and a ‘Statement of Reasons for Decision’ (‘Reasons’) on 1 March 2005.
On 27 March 2006 Ms Safi lodged an ‘Appeal against Decision of Arbitrator’ (‘appeal’) with the Commission.
On 26 April 2006 ACES filed a ‘Notice of Opposition to Appeal Against Decision of Arbitrator’ with the Commission.
THE DECISION UNDER REVIEW
The Arbitrator’s ‘Certificate of Determination’ dated 1 March 2006 records the following determination:
“1.Award in favour of the Respondent in respect of the Applicant’s claim for weekly payments of compensation.
2.Award in favour of the Respondent in respect of the Applicant’s claim for expenses under s60 of the Workers Compensation Act, 1987A [sic].
3.No order as to costs.”
ISSUES IN DISPUTE BEFORE THE ARBITRATOR AND ON APPEAL
The principal issue for determination by the Arbitrator was whether Ms Safi suffered a work related injury as alleged.
The issues in dispute in this appeal amount to whether the Arbitrator:
(1) erred in that his findings were against the weight of evidence;
(2)erred in failing to give sufficient reasons for his decision to enter an award for ACES;
(3)erred by misinterpreting the evidence and failing to refer to relevant evidence, and
(4)erred in failing to assess the case on the substantial merits of the case in accordance with section 354 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’)
LEAVE TO APPEAL
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The monetary threshold prescribed in section 352(2)(a) and (b) of the 1998 Act is satisfied.
The Appeal was lodged on 27 March 2006, within 28 days of the Arbitrator’s decision and in compliance with section 352(4) of the 1998 Act.
Leave to appeal is granted.
MANNER OF DETERMINATION OF APPEAL
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Ms Safi submits that if leave to appeal is granted there should be an oral hearing in light of the large amount of documentary evidence relied upon by the parties in this matter and the reliance upon the same by the Arbitrator. Ms Safi further submits that “it would be of assistance to the Presidential Member determining the appeal if they had the benefit of the parties’ assistance when reviewing the material”.
ACES submits that the matter can be decided on the papers.
The arbitral proceedings were recorded. However, I am informed that neither the audio recording nor a transcript of the proceedings, are available because of major computing difficulties that occurred in the Workers Compensation Commission in 2006. Unsworn evidence was given at the arbitral hearings by Ms Safi, Ms Patricia Butler and Ms Safi’s daughter, Mandy Safi. Unsworn evidence was also given by Mr Eddie Osman and Mr Corey McIntyre on behalf of ACES.
The appeal was assigned to me in priority order, in due course. Having regard to the absence of the transcript of the proceedings I issued directions dated 23 January 2007, stating:
“In the circumstances, I am unable to deal with this matter ‘on the papers’ pursuant to section 354(6) of the 1998 Act. It may be necessary to list the appeal for hearing.”
I then invited written submissions from the parties as to the way in which each considered that this matter could proceed.
On 7 February 2007 ACES filed submissions stating that, notwithstanding the absence of transcript, the appeal should not proceed by way of oral hearing as Ms Safi’s grounds of appeal relate primarily [but not exclusively] to the use made by the Arbitrator of the documentary evidence. It was further submitted that the other grounds that were raised by Ms Safi “do not include an allegation of bias, an erroneous or inappropriate standard with respect to credit, nor any ground that requires a further consideration of the appellant’s oral evidence. Therefore, there would appear to be no utility in referring to a transcript, even if one was available.”
Furthermore, ACES submits that both parties are bound by the grounds raised and the submissions made on appeal. It maintains that an oral hearing would entail simply speaking to those submissions, which do not involve significant complex issues of fact or law. It submits that if either party should attempt to adduce “fresh” evidence or raise issues beyond the scope of the appeal grounds, it would significantly prejudice the rights of the other party as to a fair hearing, “particularly where there is no transcript to challenge the veracity of any submission or evidence based upon the issue having been raised at the arbitration”.
On 7 February 2007 solicitors for Ms Safi responded stating that the Commission had given her what she believed to be a copy of the audio record relating to the arbitration hearings, and she had given it to her daughter’s friend to transcribe. The solicitors stated that if the Commission were unsuccessful in finding the recordings or transcript, Ms Safi had offered to make available the audio copy of the transcript once located.
Ms Safi’s solicitors wrote to the Commission again on 19 February 2007 and advised that their client had been unable to recover the copy of the audio transcripts obtained from the Commission. They stated that the audio recordings had been partly transcribed (approximately three quarters of the proceedings) by her daughter and her friend, and that Ms Safi was prepared to provide a copy of the incomplete transcript to the Commission and to ACES.
On 21 February 2007 ACES wrote to the Commission objecting to the production of the transcript by Ms Safi’s daughter and her friend on the following basis:
“1.Any situation where one party transcribes the evidence leaves open the possibility of the evidence being tailored to suit the party. Such a possibility is unsatisfactory for the appeal process. This is even more relevant where the recording of the proceedings cannot be found: this does not allow a comparison between the transcript of the proceedings and the actual recording.
2.Clearly the applicant is unable to produce a complete transcript of the proceedings, only three quarters of the transcript. Only a complete transcript would be satisfactory for the appeal process.”
The absence of a transcript can be a serious impediment to the process of ‘review’ that is required on appeal. In Fraternity Bowling & Recreation Club Ltd v Sartor [2004] NSWWCCPD 47 (‘Sartor’) not only was there no transcript of the oral evidence but there was no transcript of the Arbitrator’s ex tempore decision. The Arbitrator’s decision was revoked and the matter remitted to a new Arbitrator for re-hearing. The Commission noted at paragraph 15:
“The absence of a transcript of the arbitration may be fatal to the conduct of a fair review on appeal where no written reasons have been provided. The task of the Presidential Member is to ‘review’ the Arbitrator’s decision, wherever it is possible to do so, either ‘on the papers’ or after an oral hearing. Where an Arbitrator has erred in making the decision, it may not be possible for a Presidential Member to proceed to substitute a new decision … if the evidence on appeal is inadequate. This has frequently occurred because the evidence was not properly filed or given in accordance with the Rules or because it was not properly recorded in the arbitral proceedings. In these circumstances, to grant leave for fresh evidence to be given on appeal can lead to the review becoming a complete second hearing of the dispute … this is not the intention of the statutory scheme. The particular circumstances of each case will influence the course of the review.”
In Aluminium Louvres & Ceiling Pty Limited v Zheng [2006] NSWCA 34 (‘Zheng’) Bryson JA stated at paragraph 32:
“In the present case, for reasons which are not explained, there was no compact disc or sound recording of the Arbitration hearing and the evidence given there. This is a serious shortcoming, because it greatly impedes the right of appeal and the due exercise of powers of the Presidential Member under s.352; and also impedes the conduct of a further appeal under s.353. According to circumstances, the absence of a sound recording could fairly readily lead a Presidential member to a decision to require a rehearing; although that result would not be automatic.”
What then, is the situation in the matter before me? The Arbitrator has provided written Reasons making reference to both the documentary and oral evidence before him. The Arbitrator states at paragraph 71 of his Reasons:
“Much of the evidence is more related to the question of who told who about the injury and whether it indicates the truth or otherwise of the evidence given by the principle witnesses, including the Applicant. It is generally of little assistance in determining the major issue, which is, did the Applicant, on 8 January [sic], 2004, suffer an injury in the course of her employment.”
At paragraph 81 the Arbitrator refers directly to the oral evidence, stating:
“The evidence is equivocal. There was nothing in the manner in which the Applicant gave her evidence that indicated that she was not attempting to be truthful. On the other hand, I have no reason to reject the evidence of the Respondent’s witnesses, with the exception of Mr McIntyre about the exemption of Ms Safi from attending counselling, where he suggested that this might have been a ‘typo’. In particular, Mr Osman appeared to be a fully reliable witness and I accept his evidence that Ms Safi did not tell him that she had done something to her back in the context of suffering an injury at work on the morning of 8 December, and furthermore that later on he did advise her that if she had suffered an injury at work, she should report it.”
In conclusion, the Arbitrator stated at paragraph 86:
“Having regard to all the evidence, I am of the opinion that, on the balance of probabilities, the Applicant has not established that she suffered a work-related injury on 8 December, 2004, whilst in the course of her employment with the Respondent.”
Ms Safi’s submissions of appeal are detailed, and include amongst other things, argument as to the Arbitrator’s failure to give sufficient reasons for his decision; his failure to refer to crucial evidence and his misinterpretation of the evidence, and an assertion that his decision was against the weight of evidence. Ms Safi states in particular:
“18. As stated in grounds ii [at paragraph 71] he correctly identified that the only issue to be determined was whether the appellant suffered an injury in the course of her employment and that the majority of the evidence which went to notice and complaints to the respondent was peripheral to that issue and only of limited assistance.
19. The arbitrators ecliptic reasoning [at paragraph 81] of his decision that he felt that both the appellant and the respondent’s witnesses were truthful and therefore the appellant has not discharged the onus of proof of her injury is not, it is submitted, sufficient reason for that conclusion.
20. The Arbitrator in circumstances such as these must make a find [sic] as to who he accepts to be the truthful party and to give reasons as to why he comes to that conclusion so that the parties can understand why they were unsuccessful or successful. He cannot sit on the fence as he did in his reasons. ”
Ms Safi also submits that the Arbitrator failed to refer to two other important “corroborative and reasonably contemporaneous” documents in evidence before him, being, the history in the January 2004 report by Mr Mirkin, Chiropractor, and the statement of the co-worker, Patricia Butler, who corroborated the fact that Ms Safi suffered the injury in the manner alleged. Ms Safi submits that “the only criticism that could be levelled at Ms Butler was that she did not pinpoint the date as the 7 or 8 December however, it is submitted, this is consistent with a co-worker trying to reconstruct or remember the dates when asked to give a statement some time after the event.”
Ms Safi further submits:
“…if the Arbitrator has in fact accepted that in December 2004 that the appellant suffered an injury as alleged then the appellant should have been successful, the fact that it happened on 8, 21, 26 December would not have resulted in the appellant being unsuccessful if the Arbitrator had decided the case on the real merits and in accordance with the equity and good consciousness [sic].”
Ms Safi claims an injury date of 8 December 2004 in her Application to Resolve a Dispute filed on 13 October 2005. In its ‘Notice of Opposition to Appeal Against Decision of Arbitrator’, ACES correctly submits, in response to Ms Safi’s appeal submissions:
“From page 1 of the statement of reasons, the arbitrator expressly stated the appellant’s case; that is that at “3-3.30 (am) ... 8 December, 2004, when the Applicant was moving barricades” she claimed to have suffered injury to her back. This was the claim brought by the Appellant, to which she gave evidence and called both oral and documentary evidence from other sources. [Emphasis added].
For the Appellant to now submit (page 7 of the appellant’s submissions) that she should have been successful even if the injury occurred on “8, 21 or 28 December” is contrary to the evidence of the appellant, and the case that was run by her. It also fails to appreciate the onus of proof an Applicant bears to establish injury and an entitlement to compensation pursuant to ss 4, 9 and 9A of the Workers Compensation Act 1987 (Stanton-Cook v TAFE Comm (1999) 17 NSWCCR 632).”
ACES claims that the weight of evidence was clearly against supporting Ms Safi’s contention that an injury occurred on 8 December 2004 “when one combines written and verbal evidence both at hearing and contemporaneous with the event”. [Emphasis added].
While Ms Safi has made no specific submissions on appeal asserting that the oral evidence was crucial to the issue to be decided by the Arbitrator, she is entitled to expect that in reviewing the decision of the Arbitrator, particularly in light of the grounds of her appeal, I should have the whole of the relevant evidence before me. ACES submits in its opposition on appeal, that the submissions “do not include an allegation of bias, an erroneous or inappropriate standard with respect to credit, nor any ground that requires a further consideration of the appellant’s oral evidence.” As outlined above, attempts to find a way forward in this appeal have been unsuccessful, and I agree with ACES that the offer by Ms Safi to provide a “private” and incomplete version of the transcript is unacceptable. However, the fact remains that the Arbitrator relied to some extent on the oral evidence given in the proceedings before him.
The Arbitrator makes reference to the oral evidence a number of times. As noted previously, Ms Patricia Butler, along with Ms Safi and Ms Safi’s daughter, Mandy Safi, gave oral evidence at the hearing. The Arbitrator refers to Ms Safi’s oral evidence briefly in his Reasons. He does not refer at all to the unsworn oral evidence given by Ms Butler, but refers to her written statement dated 23 November 2005. The Arbitrator briefly refers to the oral evidence of Mandy Safi stating: “Mandy Safi, the Applicant’s daughter, gave evidence about the Applicant ringing her to pick her up and take her to a medical centre on 26 January [sic].” In relation to the oral evidence given on behalf of ACES the Arbitrator mentioned briefly that Mr Osman’s written evidence was consistent with the evidence he gave orally (paragraph 31 of the Reasons). The Arbitrator referred to Mr McIntyre’s oral evidence in some detail and concluded that, with the exception of one aspect of that evidence (see paragraph 27 above), he had no reason to reject the evidence given.
The difficulty in this appeal is that I do not have a copy of the transcript of proceedings to which I can refer in order to properly review the decision of the Arbitrator, including his treatment of the evidence and the adequacy of his analysis and reasons. It is inescapable that the Arbitrator did make reference to, and took into account, much of the oral evidence, as well as the documentary evidence before him. The weight that the Arbitrator attached to the evidence, the adequacy of his reasons for decision, and his treatment of the evidence are all core issues in dispute in this appeal.
An Arbitrator is required to take into account and weigh up the whole of the relevant evidence that is properly before him or her (see Prestige Property Pty Ltd v Rafiq [2006] NSWWCCPD 355). The weight to be given to the evidence properly admitted is a matter for the discretion of the Arbitrator and the decision should only be overturned if it can be shown that he or she demonstrably failed to exercise this discretion fairly and lawfully (see Vettas v Cho [2006] NSWWCCPD 122). Has the Arbitrator in this appeal failed to exercise his discretion fairly and according to law? Has he acted upon a wrong legal principle? Has he allowed irrelevant considerations to influence the decision, made a material error as to the facts or failed to take into account relevant and material considerations? A proper consideration of these questions goes to the very heart of the issues raised in this appeal (see House v The King (1936) 55 CLR 499 at 504-505; Norbis v Norbis (1986) 161 CLR 513 at 520; Re National Roads and Motorists Association Ltd [2003] FCAFC 206 at [21]).
An Arbitrator is not required to give lengthy reasons for decision. However, the reasons must be adequate and set out with sufficient clarity, the relevant findings on material questions of fact, the Arbitrator’s understanding of the applicable law and the correct application of the law to the findings made (see Snow Confectionary Pty Ltd v Askin [2004] NSWWCCPD 56 at [45]; Yates Property Corporation Pty Ltd (In liquidation) v Darling Harbour Authority (1991) 24 NSWLR 156; Ainger v Coffs Harbour City Council [2005] NSWCA 424). The requirement to give adequate reasons for decision is succinctly expressed by Kirby J in Re Minister for Immigration and Multicultural and Indigenous affairs; Ex parte Palme [2003] HCA 56 at [64]:
“The more significant the decision the clearer the duty may be, the clearer the reasons should be and the clearer the consequences will be for the breach. Some decisions cry out for a clear explanation … Especially is this so where the legislature has recognized the need and imposed a duty to give reasons and where the decision is very important for the person affected and for others close to that person.”
Arbitrators of the Commission have a statutory obligation to provide reasons for decision (see section 294(1) and (2) of the 1998 Act and Workers Compensation Commission Rules 2006, Rule 15.6).
ACES maintains that the transcript of proceedings in this matter is not essential in order to determine the appeal. Ms Safi takes no definite position on the necessity for the transcript. However, I cannot ignore the fact that the Arbitrator clearly relied upon some of the oral evidence given before him, and gave consideration to some extent to all of it, as he was required to do. I do not have that evidence before me. Consequently, I am unable to answer the questions posed in paragraph 42 above, or make an informed assessment as to the adequacy of the Arbitrator’s reasons for decision.
In Eades v Capral Aluminium Limited [2006] NSWWCCPD 201, in deciding that the review process could not be properly and fairly conducted due to the absence of the transcript, Acting Deputy President Deborah Moore referred to the second appeal decision in Fraternity Bowling & Recreation Club v Sartor [2004] NSWWCCPD 79 where the Commission said:
“The fundamental problem for the review of the Arbitrator’s findings as to the relative weight to be given to the evidence, is that he did not have all of it before him, nor did he have a clear recall of the evidence, when writing the reasons. This is not to say that the decision is against the weight of the evidence, but rather that on review I cannot be satisfied that it is not.”
While the situation is somewhat different in the matter before me, the principle stands that in the absence of some of the evidence upon which the decision was made, I am unable to undertake a proper review in order to determine whether or not the Arbitrator has erred as alleged. I consider that it would be prejudicial to one or both parties to attempt to review the Arbitrator’s decision without the benefit of the transcript, which as I have said, contains some of the evidence upon which the Arbitrator relied. This is particularly so, because of the extent to which oral evidence was given in the proceedings before him. In endeavouring to be fair in this matter, I note the comments of Gleeson CJ in Re Minister for Immigration & Multicultural Affairs; Ex parte Lam [2003] HCA, 6:
“Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.”
Clearly, I cannot be satisfied that I have sufficient information before me in this appeal to exercise my function to determine the matter without holding a conference or formal hearing, as provided in section 354 (6) of the 1998 Act. I am unable therefore, to determine the appeal ‘on the papers’.
Moreover, in the circumstances, I consider that a formal hearing would add little if any further value or substance to the written submissions already made on appeal. The situation is that the transcript of proceedings is not available, relevant evidence is missing, and a proper review of the Arbitrator’s decision cannot be carried out, having regard in particular to the specific and disputed grounds of appeal. I am unable therefore, to determine the appeal at all.
I note that no blame can be attached to the Arbitrator or to the parties for this situation. As I understand it, the absence of the transcript can be attributed directly to a significant computer failure that affected the Commission. The quality and reliability of information technology systems upon which courts and tribunals are required to rely are critical to the proper administration of justice, and in the case of the Commission, to the achievement of its statutory objectives. Regrettably, the system that the Commission is required to utilise has been found to be seriously and unacceptably wanting in relation to the adverse impact that it has had in this matter.
The error in this matter is constructive in nature, but nevertheless, it is sufficient for the decision of the Arbitrator to be revoked. It is most unfortunate, albeit in fairness to both parties that the matter must now be remitted for determination afresh by another Arbitrator. I have no wish to constrain the Arbitrator, but he or she will need to deal with the issue of obtaining the oral evidence once again, particularly as to whether such evidence needs to be given once more in oral form in an arbitral hearing, or whether written statements reproducing what each witness said at the original hearing, can be submitted instead, by agreement between the parties.
DECISION
The decision of the Arbitrator dated 1 March 2006 is revoked. The matter is remitted to another Arbitrator for determination afresh in accordance with these Reasons.
COSTS
Having regard to the circumstances of this matter, no order is made as to the costs of the appeal.
OTHER
The Registrar should ensure that the matter is assigned to another Arbitrator for determination afresh, with the least possible delay.
Gary Byron
Deputy President
31 May 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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