1. The appellant is granted leave to make submissions seeking to adduce fresh evidence on appeal.
2. The application by the appellant to adduce fresh evidence is denied.
3. The Arbitrator’s Certificate of Determination dated 15 September 2020 is confirmed.
INTRODUCTION
Faisal Sarheed (the appellant) suffered injury in the course of his employment with C1 Formwork Group Pty Limited (the respondent) on 17 January 2020. There is no dispute that the respondent is liable to pay compensation to the appellant, nor is there any dispute regarding the appellant’s current incapacity.
The dispute both below and on appeal relates to the calculation of the appellant’s Pre-Injury Average Weekly Earnings (PIAWE).
The appellant was and is receiving compensation based on a PIAWE figure of $1,009.31 as adjusted. The appellant maintained that the correct PIAWE figure was in the sum of $2,475 per week. This was the contest before the Arbitrator which involved an assessment of credit principally of two witnesses: the appellant and the respondent’s principal, Mr Ibrahim. The Arbitrator found that the appellant had failed to make out his case and consequently made no order on the application. It is from that decision that the appellant seeks intervention on appeal.
TRANSITIONAL MATTERS
After the current appeal was lodged, the Workers Compensation Commission was abolished.[1] The matter now comes before the Workers Compensation Division of the Personal Injury Commission by operation of the 2020 Act, from 1 March 2021.[2] The 2020 Act amended certain parts of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). Relevantly, the arbitrators of the former Workers Compensation Commission became non-presidential members of the Personal Injury Commission. The amendments allow for appeals from decisions of the members of the Personal Injury Commission to a Presidential member of the Workers Compensation Division of the Personal Injury Commission in accordance with s 352 of the 1998 Act. In view of her appointment at the time of her decision, for convenience, I will refer to the Member in her capacity as an Arbitrator.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Sarheed v C1 Formwork Group Pty Limited [2021] NSWPICPD 7
Case
[2021] NSWPICPD 7
Decision Date
CaseChat Overview and Summary
The appeal is from a decision of the Workers Compensation Regulator in relation to a claim for workers' compensation by the appellant, Faisal Sarheed, against the respondent, C1 Formwork Group Pty Limited. The matter was before the Court on an application by the appellant for leave to adduce fresh evidence. The appellant contends that the decision maker failed to take into account relevant considerations and thereby failed to observe the principles of natural justice. The court had to determine whether the fresh evidence proposed by the appellant, if accepted, would cause substantial injustice within the meaning of section 352(6) of the Workplace Injury Management and Workers Compensation Act 1998.
The court considered the relevant provisions of the Act, including section 352(6) which provides that fresh evidence may be adduced if the absence of the evidence would cause substantial injustice. The court noted that the substantial injustice criterion must be interpreted as requiring a comparison between the result that would emerge if the evidence were taken into account and the result that would emerge if it were not. The court also considered the authorities of CHEP Australia Limited v Strickland and Jones v Dunkel, which provide guidance on the interpretation of the substantial injustice criterion. The court concluded that the fresh evidence proposed by the appellant, if accepted, would not cause substantial injustice within the meaning of section 352(6) of the Act.
Accordingly, the court denied the appellant's application to adduce fresh evidence and confirmed the Arbitrator’s Certificate of Determination dated 15 September 2020. The court found that the absence of the proposed fresh evidence would not cause substantial injustice in the case. The court also noted that the evidence proposed by the appellant was not compelling and did not have the potential to influence the outcome of the case. The court found that the decision maker had properly considered all relevant evidence and had not failed to observe the principles of natural justice.
Orders
Orders of the court
1. The appellant is granted leave to make submissions seeking to adduce fresh evidence on appeal.
2. The application by the appellant to adduce fresh evidence is denied.
3. The Arbitrator’s Certificate of Determination dated 15 September 2020 is confirmed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
The Court of Appeal has examined this question in CHEP Australia Limited v Strickland.[8] Barrett JA in considering this question said as follows:“Counsel for the appellant submitted that the Commission misdirected itself in law in construing the ‘substantial injustice’ criterion in s 352(6). It was submitted that that criterion may be satisfied in circumstances where it is not possible to say that availability of new evidence would have produced a different result; and that the criterion will be satisfied if the evidence is compelling and might have influenced the outcome even though it cannot be said that it would certainly have done so.That construction cannot be accepted. The part of s 352(6) concerning ‘substantial injustice’ does not direct attention to possibilities or potential outcomes. The task is to decide whether absence of the evidence ‘would cause’ substantial injustice in the case. There must therefore be 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.”[9] (emphasis added)[8] [2013] NSWCA 351 (Strickland).[9] Strickland, [30]–[31]. It is therefore necessary for me to consider in some detail the emails sought to be adduced as fresh evidence and to determine whether or not a failure to admit this evidence would cause substantial injustice in the case in accordance with the passage set out above from Strickland. The first email from the appellant’s solicitor, Mr Kassira, of 30 November 2020 reads as follows:“Dear CBUS TeamPlease find attached signed third party authority form by my client.I have also attached a payslip from the employer which suggests that a contribution was made into a CBUS account on my client's behalf.Please urgently confirm the following:1. whether a CBUS account exists in my client's name;2. whether the contribution referred to in the payslip was made and if so, the date of contribution;3. whether the CBUS account number referred to in the payslip exists; and4. any other information you believe may assist.RegardsMason KassiraPrincipal” Attached to this email were the Cbus third party authority form and a copy of the payslip from page 38 of the respondent’s Reply. The second email is in response to Mr Kassira’s email of 30 November 2020. This email, dated 1 December 2020, is from a person who is described as “Zak” from the Cbus Communications Team. Zak responds to Mr Kassira as follows:“Thank you for your email.Please be advised, we are unable to locate an active account with the information provided on the form.We would suggest to have the client contact Cbus by email or phone for information.” This invitation is then taken up by the appellant, Mr Sarheed. Mr Sarheed, by email dated 2 December 2020, wrote to Zak as follows:Dear ZakMy name is Faisal Sarheed born [redacted]. I have attached a photo of my identification.I confirm that my legal representatives are Kassira Law Pty Ltd which includes all staff from Kassira Law. I authorise Kassira Law to access all CBUS account information in relation to me requires [sic].I have attached a payslip which indicates that a contribution was paid into a CBUS account on my behalf.Please confirm the following:1. does a CBUS account exist in my name?2. if a CBUS account in my name was ever active, when did it become inactive?3. does a CBUS account linked to me with member number 700445905 exist?4. was a contribution made by C1 Formwork Group Pty Ltd in the amount of $78.20 into a CBUS account linked to a person named Faisal Sarheed; and5. any other information you believe may assist.Please reply by 11am tomorrow morning.If you wish to discuss the matter with me, please call me with an Arabic interpreter present on [redacted].Kind regardsFaisal SarheedAttached in this e-mail is also my license and my lawyer’s e-mail.”