Secretary, Department of Education v Sadler - [2021] NSWPICPD 25

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Secretary, Department of Education v Sadler [2021] NSWPICPD 25
APPELLANT:	Secretary, Department of Education
RESPONDENT:	Dale Sadler
INSURER:	Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-4257/20
MEMBER:	Mr R Bell
DATE OF MEMBER’S DECISION:	18 December 2020
DATE OF APPEAL DECISION:	10 August 2021
CATCHWORDS:	WORKERS COMPENSATION – weight of evidence in the Commission – application of Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282; failure to examine all of the material relevant to the particular issue – application of Waterways Authority v Fitzgibbon [2005] HCA 57; 79 ALJR 1816
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:
Ms B Tronson, Mr J Beran and Ms C Roberts, counsel
Hall & Wilcox, solicitors
Respondent:
Mr J de Greenlaw, counsel
Adams & Co Lawyers
ORDERS MADE ON APPEAL:	1. Leave is granted to the appellant to rely on Grounds of Appeal Nos. 6 and 7. 2. Leave is granted to the appellant to appeal an interlocutory decision under s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998. 3. The Certificate of Determination dated 18 December 2020 is revoked. 4. The matter is remitted for re-determination by another member.

INTRODUCTION AND BACKGROUND

Dale Sadler (the respondent) was employed by the Department of Education (the appellant) as a Deputy Principal in the public school system. In about 2015 he was seconded[1] to a position in the appellant’s School Safety and Response Unit, later known as the Incident Support Unit (ISU). It was made up of “seconded Deputy Principals, seconded police officers, and Departmental officers”.[2] Incidents of “a criminal/serious nature” that occurred in primary and high schools were reported to the Unit, which offered guidance on their handling.
[1] Ms O’Brien’s statement 24/8/20, [6], Reply, p 12.
[2] Ms Gerardis’ statement 21/8/20, [5]–[7], Reply, p 2.
In about February 2017, the functions of the ISU were to be transferred from the appellant’s Safety and Security Directorate to its Health and Safety Directorate. It was to relocate from Blacktown to Bankstown. The Unit was to report to Ms Marnie O’Brien, the Executive Director, Health and Safety. The unit was relatively small, about ten plus people. Ms O’Brien describes the Unit as “very unhappy about the relocation to Bankstown. There were rumours about restructuring their roles, turning them into lower grade admin staff”. Ms O’Brien states staff “believed the Directorate would not understand the complexity of the work”. She states she engaged a consultant, specifically Paul York who was “ex-Police Integrity Unit”, to understand the unit’s “work practices, systems and culture”. Following its geographical transfer, the unit was located in a hub that was part of the Department’s premises at Bankstown. The respondent was working with the unit as part of his secondment.[3] The respondent gives a history of “bullying or undermining or harassment”, which “started before they moved to Bankstown”.[4]
[3] Ms O’Brien’s statement 24/8/20, [6], [9]–[10], [13], Reply, pp 12–14.
[4] Dr Dinnen’s report 17/10/19, Application to Resolve a Dispute (ARD), p 205, respondent’s statement 27/7/20, ARD, p 1.
There was an incident on 16 May 2017, the circumstances of which are in contest between the parties. The respondent was to be attending in-house training that day. The recently appointed manager of the unit’s team was Dianne Gordon. The respondent stated that when he arrived at work that day “other members” of the unit were “concerned about a comment Ms Gordon had made about our team”. It was said that a team member, Daniel Lauric, had earlier overheard Ms Gordon say to the consultant, Mr York, “that we were difficult and that we would not share information”. The respondent said that “[e]veryone in the team was concerned that we were portrayed as problematic to the consultant who was there to assess us”. The respondent said that at the commencement of the day Ms Gordon “got our attention and briefly advised us of the consultant’s role” and then asked if there were any questions. The respondent said he asked about the above comment, saying the ISU team were “all concerned about its ramifications”. He states the question was asked “in a normal professional tone”. He denies he behaved confrontationally.[5]
[5] Respondent’s statement 27/7/20, ARD, p 1.
Later that day, in the afternoon, Ms O’Brien came to the room where the training was being carried out and had the respondent accompany her to her office. She showed him a document from Mr York which she told him to read. Ms Gerardis, who was “one of two Directors within the Directorate” was also present.[6] Evidence regarding what occurred and was said at this meeting diverges. The ultimate outcome was that the respondent’s employment in the unit came to an end that afternoon.
[6] Ms Gerardis’ statement, 21/8/20, [9], Reply, p 2.
The respondent took some time off on leave and then performed some teaching on a casual basis. He developed psychological symptoms and took time off on accrued sick leave.[7] Eventually he lodged a claim for workers compensation which was rejected in a s 78 notice dated 10 May 2019. The appellant’s insurer disputed the occurrence of injury and disputed that there was any entitlement to weekly compensation or medical expenses. It asserted a defence pursuant to s 11A of the Workers Compensation Act 1987 (the 1987 Act) on the basis that the injury resulted wholly or predominantly from reasonable action on the appellant’s part in respect of dismissal.
[7] Dr Dinnen’s report 17/10/19, ARD, p 206.
The current proceedings were commenced on 3 August 2020. The claim is for lump sum compensation in respect of 22 per cent permanent impairment for psychiatric and psychological disorder, consistent with an assessment of Dr Dinnen, psychiatrist, dated 17 October 2019, that was arranged by the respondent’s solicitors.[8] The respondent was assessed on the appellant’s behalf by Dr George, psychiatrist, who reported on 25 November 2019. He assessed 23 per cent permanent impairment.[9] An arbitration hearing was held on 11 November 2020. Mr de Greenlaw appeared for the respondent and Mr Flett for the appellant. In accordance with the Commission’s practices then (and currently) the hearing was conducted through an online platform. The respondent, by leave, gave oral evidence. He gave some relatively brief evidence-in-chief[10] and was then cross-examined.[11] Both counsel addressed and the Arbitrator reserved his decision.
[8] ARD, pp 211–212.
[9] Reply, pp 155–162.
[10] Transcript of arbitration hearing 11/11/20 (T), T 23.9–26.6.
[11] T 26.13–72.15.
The Commission issued a Certificate of Determination dated 18 December 2020, accompanied by 23 pages of reasons.[12] The Arbitrator found the respondent had suffered a psychological injury deemed to have occurred on 16 May 2017, to which the relevant employment was the main contributing factor. He found the Department’s s 11A(1) defence was not made out. He referred the claim for permanent impairment to an Approved Medical Specialist (AMS) for assessment.
[12] Sadler v Secretary, Department of Education [2020] NSWWCCC 416 (the reasons).

TRANSITIONAL MATTERS

After this case was determined the New South Wales Workers Compensation Commission was abolished.[13] The matter became a matter within the Workers Compensation Division of the Personal Injury Commission by operation of the Personal Injury Commission Act 2020 (the 2020 Act), from 1 March 2021.[14] 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, and the decision-maker involved in these proceedings became a member of the Personal Injury Commission. At the time of the decision in these proceedings the decision maker was an arbitrator, and I will refer to him by that title.
[13] Clause 3 of Div 2 of Pt 2 of Sch 1 to the Personal Injury Commission Act 2020.
[14] Clause 12(1) of Div 2.3 of Pt 2 of the 2020 Act.

ON THE PAPERS

Section 52(3) of the 2020 Act provides:
“(3) 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 and enabling legislation without holding any conference or formal hearing.”
The appellant, in the submissions accompanying its appeal, submits that the appeal can be decided solely on the basis of the written material.[15] As is customary, the Commission, when it furnished the parties with the transcript of the proceedings before the Arbitrator, directed that supplementary submissions in respect of the transcript could be made (by 11 February 2021). The appellant lodged supplementary submissions dated 11 February 2021. These were described as being “by leave” and sought to add two additional grounds of appeal.
[15] Appellant’s submissions, [3].
The appellant, in its supplementary submissions, submits that contrary to its original position, there should be an oral hearing of the appeal. The appellant submits that this will provide the fullest opportunity for the parties to address recent decisions of the Court of Appeal dealing with the operation of s 352 of the 1998 Act. In this regard it refers to Workers Compensation Nominal Insurer v Hill,[16] and Cruceanu v Vix Technology (Australia) Ltd.[17] Additionally, in its supplementary submissions, the appellant refers to a decision of mine in Calvary Home Care Services Ltd v Vernon,[18] as including a detailed consideration of authorities including Hill and Northern New South Wales Local Health Network v Heggie.[19] It also submits “the factual analysis leading to the central credit findings” has some complexity and there should be a full opportunity to address those matters too.[20]
[16] [2020] NSWCA 54; 295 IR 172 (Hill).
[17] [2020] NSWCA 203 (Cruceanu).
[18] [2020] NSWWCCPD 54 (Vernon).
[19] [2013] NSWCA 255 (Heggie).
[20] Appellant’s supplementary submissions, [3], [5], [8]–[12].
The respondent’s submissions on this appeal were lodged on 3 March 2021, after the Department’s supplementary submissions. The respondent submits the basis of the application for an oral hearing is “misconstrued” and that it is appropriate the appeal be dealt with on the papers.[21] The respondent submits the decision in Vernon involved a different issue and is “an entirely different situation to the subject case”. The respondent refers to paragraphs [9] to [11] of the appellant’s supplementary submissions, relating to the nature of an appeal pursuant to s 352(5). The respondent submits that these principles are “hardly controversial”.[22]
[21] Respondent’s submissions, [3].
[22] Respondent’s submissions, [54]–[55].
The appellant’s submissions in reply refer to the decision in Vernon. It is submitted the point the appellant seeks to draw from that decision is that there was a finding that there was appealable error on the basis of a denial of procedural fairness, notwithstanding that an arbitrator’s finding was open on the evidence. It submits that “conclusions as to credibility can be the subject of appealable error”.[23]
[23] Appellant’s submissions in reply, [4]–[5].
Subsection (5) of s 352 of the 1998 Act, which restricts appeals to the correction of error of fact, law or discretion, commenced on 1 February 2011.[24] The scope of an appeal pursuant to s 352(5) of the 1998 Act was considered by Roche DP in Raulston v Toll Pty Ltd.[25] The Deputy President applied the principles stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr.[26] The Deputy President engaged in a careful analysis, by reference to established authority, of the legal principles governing appeals pursuant to subs (5). Raulston was referred to without criticism in Heggie.[27] In Davis v Ryco Hydraulics Pty Ltd Keating P said that the principles in Raulston had been “consistently applied in the Commission”.[28] In Heggie Sackville AJA referred to Norbis v Norbis[29] saying:
“A fortiori, if a statutory right of appeal requires a demonstration that the decision appealed against was affected by error, the appellate tribunal is not entitled to interfere with the decision on the ground that it thinks that a different outcome is preferable.”[30]
[24] Heggie, [44].
[25] [2011] NSWWCCPD 25 (Raulston).
[26] (1966) 39 ALJR 505 (Whiteley Muir), 506.
[27] Heggie, [71].
[28] [2017] NSWWCCPD 5, [67].
[29] [1986] HCA 17; 161 CLR 513.
[30] Heggie, [72].
The scope of an appeal pursuant to s 352 was more recently considered in the Court of Appeal in Hill, where Basten JA said:
“With respect to errors of fact finding, the line between preferring a different result and identifying error is by no means easy to draw, but that is clearly what the Deputy President sought to do by adopting the language complained of. It was also what Barwick CJ sought to do in Whiteley Muir in using such language to identify the difference between an appeal based on a finding of error and a hearing de novo (and, one must now add, a rehearing). If, on an appeal by way of rehearing, the court asked whether the findings of fact were ‘open’ to the trial judge, that might demonstrate an unduly limited understanding of the court’s function; however, that language is not out of place in determining an appeal from factual findings under s 352(5).”[31]
[31] Hill, [20].
The above is consistent with Raulston. The appellant also refers to Cruceanu. The central issue in Cruceanu revolved around whether there was a failure to accord a worker natural justice, where the worker’s case was allegedly misunderstood with the consequence that the Commission failed to respond to a “substantial clearly articulated argument”.[32] That the Commission is under a duty to afford parties procedural fairness is clear. In South Western Sydney Area Health Service v Edmonds, in dealing with the jurisdiction of the former Workers Compensation Commission of New South Wales pursuant to the 1998 Act, McColl JA observed an arbitrator was “prima facie obliged to act in accordance with the obligations of procedural fairness and natural justice”.[33] The decision in Raulston refers to appealable error on the basis of a denial of procedural fairness.[34] My decision in Vernon is referred to by the appellant, on the basis that it involved a finding of appealable error because of a denial of procedural fairness, notwithstanding that an arbitrator’s finding was open on the evidence. That there can potentially be appealable error in a first instance decision, even if the result was open on the evidence, would not seem to be open to doubt. The Deputy President in Raulston refers to the potential for appealable error in how credit issues are dealt with.[35] Reference is made to established authority, including Fox v Percy.[36]
[32] Cruceanu, [59]–[63], applying Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088.
[33] [2007] NSWCA 16 (Edmonds), [91]–[92].
[34] Raulston, [30].
[35] Raulston, [26].
[36] [2003] HCA 22; 214 CLR 118 (Fox v Percy).
The appellant does not otherwise refer to specific aspects of “recent decisions of the Court of Appeal” which it seeks to address orally, or to why any such submissions could not have been included in the submissions it has lodged on this appeal. In short, I accept the respondent’s submission that the provisions in s 352(5) are “hardly controversial”. The appellant has already addressed credit issues at some length in each of the three sets of submissions it has lodged.
Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties, 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.

GROUNDS OF APPEAL

The appellant raises the following grounds of appeal:
(a)   The Arbitrator erred in law by failing to consider all the evidence before him when deciding what occurred in the ‘morning meeting’ (Ground No. 1).
(b)   The Arbitrator erred in fact and law by determining the evidence of Ms O’Brien and Ms Gerardis lacked credit (Ground No. 2).
(c)   The Arbitrator erred in fact as to what occurred at the ‘Office Meeting’ on 16 May 2017 (Ground No. 3).
(d)   The Arbitrator erred in fact finding that the respondent’s conditions of employment prior to 16 May 2017 contributed towards his psychological injury (Ground No. 4).
(e)   The Arbitrator erred in fact and law by determining that the respondent’s psychiatric condition was a disease (Ground No. 5).
(f)    The Arbitrator erred in fact and law in failing to have regard to critical evidence relevant to his determination of the respondent’s credit (Ground No. 6).
(g)   The Arbitrator erred in fact and law in finding that the appellant’s policies or guidelines were not in evidence, and/or in failing to have regard to those policies and guidelines (which were in evidence), in circumstances where those policies and guidelines were relevant to each party’s case and regarded as important by the Arbitrator (Ground No. 7).
Grounds Nos. 1 to 5 are raised in the Application to Appeal, Grounds Nos. 6 to 7 are the subject of an application for leave in the appellant’s supplementary submissions.

THE ADDITIONAL GROUNDS OF APPEAL

The practice of seeking to add additional grounds of appeal following receipt of transcript has been the subject of criticism. In NSW Police v Gurnhill Roche DP referred to the practice as “unsatisfactory and unacceptable”.[37] The Deputy President said the provision of transcript after the time the appeal was lodged was “no excuse for not including all relevant grounds of appeal in the Application – Appeal Against Decision of Arbitrator”. He noted the comments of Allsop P in Kounnas v Citywide Civil Engineering Pty Ltd that practitioners are required to keep notes of the essentials of what occurs in court.[38]
[37] [2014] NSWWCCPD 12, [113].
[38] [2012] NSWCA 287, [14].
In the current matter, the appellant submits its appeal is otherwise compliant, that the respondent’s submissions had not been lodged when the further grounds were raised, and that it was unlikely the respondent would suffer any prejudice. It submits it was only on review of the transcript that it was apparent that the additional two grounds were arguable.[39]
[39] Appellant’s supplementary submissions, [3].
The respondent’s submissions refer to the appellant’s supplementary submissions. The respondent notes these include “general submissions and two further grounds of appeal referred to in the Supplementary Submissions”. It states: “In view of the circumstances referred to in those Supplementary Submissions the respondent does not oppose the appellant being granted leave to rely on those additional submissions.”[40] The respondent then responds to the appellant’s supplementary submissions, including the two additional grounds, without objection.[41] The respondent does not oppose the reliance on the further grounds. In the circumstances the appellant is given leave to rely on the two further grounds.
[40] Respondent’s submissions, [65]–[66].
[41] Respondent’s submissions, [67]–[89].

INTERLOCUTORY APPEAL

Section 352(3A) of the 1998 Act provides:
“There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”

In Licul v Corney Gibbs J (as his Honour then was) said:
“The distinction between final and interlocutory judgments is not always easy to draw and there has been disagreement as to the test by which the question whether a judgment is final or interlocutory is to be determined. One view - which was preferred by the Court of Appeal in Salter Rex and Co. v. Ghosh - is that the test depends on the nature of the application made to the Court. The other view which, since Hall v. Nominal Defendant, should, I think, be regarded as established in Australia, depends on the nature of the order made; the test is: Does the judgment or order, as made, finally dispose of the rights of the parties?”[42]
[42] [1976] HCA 6; 180 CLR 213, 225.
The Arbitrator’s orders in the Certificate of Determination involved a finding of injury, a finding that the defence pursuant to s 11A(1) of the 1987 Act was not made out, and orders referring the matter to an AMS for assessment of whole person impairment. This did not finally dispose of the rights of the parties.[43]
[43] See Vernon at [10]–[12] and the decisions there referred to.
The respondent’s submissions identify the decision under appeal as ‘interlocutory’,[44] a view which I accept. The appellant in its submissions in reply seeks leave pursuant to s 352(3A) if necessary.[45] The respondent consents to this course.[46] The grant of leave is appropriate for the short reasons referred to in Vernon at [11] to [12] of that decision. Leave is granted to the appellant to appeal an interlocutory decision under s 352(3A) of the 1998 Act.
[44] Respondent’s submissions, [6].
[45] Appellant’s submissions in reply, [2].
[46] Respondent’s submissions, [6], [90].

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum and time pursuant to ss 352(3) and 352(4) of the 1998 Act have been met.

MEMBER’S REASONS

The Arbitrator set out the background and issues; he noted that the respondent gave oral evidence. He set out the documents that were admitted before him.[47] He referred to material in the ARD to which the appellant objected and noted this was admitted at the arbitration hearing for reasons there given. He gave further reasons in respect of this material, referring to Paul Segaert Pty Ltd t/as Lidco v Narayan[48] and r 15.2 of the then Workers Compensation Commission Rules 2011. He said the evidence objected to involved issues of “workplace culture and atmosphere” that were alleged to have negatively impacted the respondent’s psychological health.[49]
[47] Reasons, [1]–[6].
[48] [2006] NSWWCCPD 296, [73].
[49] Reasons, [7]–[10].
The Arbitrator summarised the respondent’s statement dated 7 May 2019,[50] described as “a timeline of major incidents that have led to my current state”. He noted the respondent’s evidence that the injury “was not only caused on 16 May 2017 but had been ongoing beforehand”.[51] He summarised the respondent’s other statements,[52] one dated 27 May 2020 [sic 27 July 2020][53] and the other undated.[54] There were a multitude of lay statements and documents in evidence, which the Arbitrator described. He referred to multiple documents from people who worked in the ISU. It is unnecessary to describe these individually. A number (Vicki Moore, Ms Kennedy, Lisa McGeown, Daniel Lauric) supported the respondent’s position. They referred to Ms O’Brien “creating a culture of bullying” and screaming at staff. Ms O’Brien was said to have given a “very angry response” when a staff member contacted “the union”. A number supported the respondent’s position, that the question he asked of Ms Gordon in the meeting on 16 May 2017 was not aggressive, rude or unprofessional. One described it being asked in a “calm and considered manner”. It was stated that the ISU team “was never questioned over what happened in the earlier meeting”.[55]
[50] ARD, pp 9–22.
[51] Reasons, [11]–[12].
[52] Reasons, [13]–[23].
[53] ARD, pp 1–7.
[54] ARD, pp 23–27.
[55] Reasons, [24]–[38].
The Arbitrator summarised a statement of Ms Moore dated 26 July 2020. It referred to incidents before the team moved from Blacktown. It described Ms O’Brien yelling at people and a Police Inspector walking out from the unit saying he could not “work under that management”. It described an incident where Ms Moore was with Ms Karatas, a relieving Police Inspector, in Ms O’Brien’s office, when Ms O’Brien shook her fist at them and told them they had “one brain”. Ms Moore said that after this incident she tried to leave the office and Ms O’Brien pinned her to her desk area and did not release her until Ms Karatas intervened. Various of the statements referred to the emotional effect on the respondent of the events on 16 May 2017 and at other times.[56] The Arbitrator also summarised material relating to a number of complaints made subsequently to the Minister for Education, members of Parliament and senior figures in the Department of Education.[57]
[56] Reasons, [39]–[51].
[57] Reasons, [52]–[58].
The Arbitrator summarised, at length, the statement of Ms Gerardis, who was present when Ms O’Brien met with the respondent on the afternoon of 16 May 2017. Ms Gerardis denied the culture in the unit was “toxic” and said she did not witness Ms O’Brien bully anybody. She thought the respondent indicated at the meeting that he did not require a support person, she assumed the respondent had been given a “heads up” regarding what the meeting was about. She was unaware of what investigations Ms O’Brien had made prior to the meeting. She said the respondent “acknowledged that his behaviour had been inappropriate”. She said it was agreed that the respondent would “finish up that day”. She stated that Ms O’Brien, at the meeting, was not red faced, angry, aggressive, intimidating, bullying, harassing, accusatory. She said she did not know whether the respondent was aware that she (Ms Gerardis) would be present for the meeting, but “presumed he was advised”. She denied there was a “power imbalance” in the room. It was not obvious to her that the respondent was intimidated or upset by the meeting. She could not recall Ms O’Brien terminating the respondent’s contract. She recalled the respondent “offering to finish up that day”.[58]
[58] Reasons, [59].
The Arbitrator summarised Ms O’Brien’s statement dated 20 August 2020. Mr York called her about the morning meeting. She stated she spoke to staff, lots of whom were upset, about what happened. She “spoke to the 4 people directly adjacent to where the incident happened”. The “feedback” was that the respondent had been “aggressive and he had been in [Ms Gordon’s] personal space”. She needed to take immediate steps “given the distress in the office”. She said she could not give the respondent notice of the meeting “because it was a serious issue that had to be addressed immediately”. She set up the meeting to include Ms Gerardis as a “second person in the meeting”. Ms O’Brien said that the respondent “agreed he had acted inappropriately and unacceptably”. Ms O’Brien said it was “apparent to her that [the respondent] was admitting to verbally abusing Ms Gordon and physically intimidating her”. She told the respondent she “could not see how [she] could extend his position further”. After discussion the respondent “said he was comfortable about finishing that day and I agreed”. She denied being “angry, red faced or aggressive in the meeting”. She denied terminating the respondent. She said the respondent refused an offer to have a support person present at the meeting. He was “given ample opportunity to respond”. Ms O’Brien denied “creating ‘a toxic work culture’” or bullying staff. She said “staff were resistant to change, so there have been issues”. She said “it was not a toxic work culture but there was a toxic culture in the ISU”.[59]
[59] Reasons, [60].
Mr York gave a statement dated 4 November 2020[60] which the Arbitrator summarised. He said that on 16 May 2017 he was in the ISU hub talking with Ms Gordon when the respondent, “out of the blue”, “stood up and spoke in a loud voice” asking about the alleged conversation in which Ms Gordon criticised the team. Ms Gordon’s attempt to respond was cut off by the respondent saying: “You were heard saying this”. Mr York said he “responded himself”, saying that the allegedly overhead conversation did not occur. Mr York described the respondent’s demeanour as “condescending”, it was “inappropriate and highly unprofessional”. The Arbitrator referred to an email from Mr York to Ms O’Brien dated 16 May 2016,[61] which he quoted in part:
“To my surprise and also my disgust ISU team member Dale ‘Grandstanded’ Di Gordon in front of the ISU team and to be honest I am confident that the entire floor heard the accusations.” (emphasis in original)
[60] Reasons, [64]–[67].
[61] Reasons, [68].
The Arbitrator referred to a number of other emails, written reports and documents involving complaints which do not need to be recited.[62] He referred to clinical notes from medical practices that include references to psychological complaints.[63] He referred to the parties’ qualified medical evidence from Drs Dinnen and George.[64]
[62] Reasons, [61]–[63], [69]–[71].
[63] Reasons, [72]–[78].
[64] Reasons, [79]–[87].
The respondent’s material included documents relating to various other employees of the appellant who were allegedly “adversely affected by Ms O’Brien’s behaviour” at different times.[65] This material included complaints and associated correspondence dating back to 2007. It included a Certificate of Determination, and an arbitrator’s reasons, from the former Workers Compensation Commission of New South Wales in matter no. 11673/12.[66] Those proceedings involved an allegation of psychological injury by a worker unconnected to the respondent. The material also included a small amount of documentation relating to the respondent. The Arbitrator referred to this material saying he “did not find the historical material relating to events and behaviours in times earlier than [the respondent’s] period in the ISU to be of any real assistance”. He said “The evidence from the relevant period is sufficiently clear for the issues to be determined without any need to take inferences from earlier times”.[67]
[65] AALD 28/10/20, pp 32–33.
[66] AALD 28/10/20, pp 72–97.
[67] Reasons, [88].
The Arbitrator noted the appellant’s submission that the respondent could not be accepted as a witness of truth, having regard to the cross-examination about his ability to travel. It was noted the respondent was pressed about his travel to Melbourne, Wagga Wagga, Culburra and Europe. It was put that the respondent had withheld this history from Dr Dinnen. The Arbitrator said the respondent told the appellant about the European trip, as he needed a “special sick certificate” for the trip, which was confirmed by Dr Davey’s clinical notes. He said it was apparent from the respondent’s evidence that none of his travel was enjoyable for him. He travelled to Europe to save his marriage, consistent with strain on the relationship because of his symptoms. The travel to Wagga Wagga, Melbourne and Culburra “does not mean he was not suffering from the diagnosed condition throughout”. He accepted the respondent’s evidence regarding why he did not mention travelling to other places after being asked about Melbourne, Wagga Wagga and Culburra, “he thought he was being asked about travel in Australia”. The Arbitrator accepted this, the question was “not specific”. There was no reason to “attempt to hide a trip to Europe when the [appellant] knew all about it”. He said the respondent spent most of the cruise in the cabin, consistent with the medical opinions and history.[68]
[68] Reasons, [89]–[94].
The Arbitrator said the evidence about travel was not inconsistent with the history to Dr Dinnen that he “does not go out anywhere”. The Arbitrator said this seemed to refer to going out to social outings from home. The respondent “does not say he is housebound and offers that he can drive to get fish and chips on his own”. He said he formed the view that the respondent “was not trying to conceal anything, either from Dr Dinnen, or when giving his oral evidence”.[69]
[69] Reasons, [96]–[97].
The Arbitrator said that he found the respondent “direct and open in his answers”. He said there was some difficulty with memory, but this was “consistent with the memory issues due to the condition noted in the medical evidence”. He said the respondent’s “oral evidence in this regard must be given some latitude given the severity of the symptoms of his condition”.[70]
[70] Reasons, [98].
The Arbitrator referred to the respondent’s evidence regarding what happened on 16 May 2017. He said the respondent “was firm regarding his version”. The respondent rejected a suggestion his distress was due to the complaint process, as opposed to “the meeting on 16 May 2017 or earlier events”. The Arbitrator said the respondent was challenged about the “impromptu meeting” with Ms Gordon on 16 May 2017 and “rejected suggestions that he stood up from his chair or spoke aggressively to her”. The Arbitrator described the respondent’s credit as “unaffected” by questioning about a desktop investigation.[71]
[71] Reasons, [89]–[101].
The Arbitrator recognised there were conflicts in the evidence regarding the morning meeting of ISU staff with Ms Gordon on 16 May 2017. The Arbitrator said that, in his statement Mr York added “the new point that [the respondent] stood up when he asked the question”. The Arbitrator referred to Mr Hoole’s statement, when interviewed by Ms Van Berlo, that Mr Hoole was in another part of the office and “could not hear the detail of the discussion but did hear [the respondent] being ‘abrupt’ with Ms Gordon”.[72]
[72] Reasons, [103]–[104].
The Arbitrator referred to Ms O’Brien’s evidence that the respondent “verbally abused and physically intimidated Ms Gordon and invaded her personal space”. He said there was “nothing to support Ms O’Brien on it given she was not present at that meeting”. He said there was nothing from Mr York (to whom Ms O’Brien spoke) supporting her version. He referred to Ms O’Brien’s version that the respondent, in her office, admitted to “verbally abusing and physically intimidating Ms Gordon”. The Arbitrator said this was not supported by other evidence apart from Ms Gerardis. He said there was no evidence from the four “adjacent” people that “Ms O’Brien asserts she spoke with”.[73]
[73] Reasons, [105].
The Arbitrator referred to statements from “ISU members, who were part of the morning meeting”, who said that the respondent’s question was asked reasonably. The Arbitrator did not accept the evidence from Ms O’Brien that the respondent was verbally abusive and physically intimidating towards Ms Gordon. The Arbitrator said this was not said by Mr York in his email to Ms O’Brien, and it was only in his “much later statement” that Mr York added that the respondent stood before he spoke. The Arbitrator described Mr York as having a personal involvement in the question, having been involved in the conversation overheard by Mr Lauric. The Arbitrator said it was a matter of “individual interpretation” whether the respondent’s tone was either “condescending” or “Grandstanding”’, or measured or reasonable. Others thought the question was asked “in a normal or reasonable manner”. The Arbitrator said he did not accept that the respondent stood up to ask the question. He said that in any event this would not, “of itself”, be aggressive or intimidating.[74]
[74] Reasons, [106].
The Arbitrator then dealt with the meeting involving the respondent, Ms O’Brien and Ms Gerardis on the afternoon of 16 May 2017. The Arbitrator said “everything is consistent with [the respondent’s] position being terminated by Ms O’Brien, except her statement and that of Ms Gerardis”. He said the respondent “states emphatically that his position was terminated”.[75] “His disarray was evident to all who saw him immediately afterwards”. At the meeting with staff on the morning of 17 May 2017 Ms O’Brien responded to their concerns saying “It was my decision”.[76]
[75] Reasons, [107].
[76] Reasons, [107]–[108].
The Arbitrator said: “It is apparent that Ms O’Brien had not spoken to [the respondent’s] ISU colleagues present at the meeting with Ms Gordon, who have made statements for the proceedings, as to what had happened before summoning [the respondent] to her office”. Ms O’Brien’s email to the respondent dated 17 June 2017 was inconsistent with him resigning, it included “… you were advised of the cessation of your temporary appointment with the Health and Safety Directorate effective immediately”. Correspondence from Mr Riordan, Deputy Secretary, Corporate Services with the Department, dealing with a complaint from the respondent, referred to the issue of “termination” and included “I agree that your early termination could have been handled more sensitively …”. An email from Ms Thorpe, following an information gathering discussion with Ms Gerardis, included a report of a conversation that the respondent’s contract “was terminated”.[77]
[77] Reasons, [109]–[112].
The Arbitrator rejected Ms O’Brien’s statement of the events in her meeting with the respondent, saying it and Ms Gerardis’s statements cannot be accepted. Their evidence that the respondent resigned was contradicted by the other evidence. The Arbitrator additionally described, as ‘implausible’, the account by Ms O’Brien and Ms Gerardis that a “calm and unperturbed” respondent offered his resignation after agreeing that he had verbally abused and physically intimidated Ms Gordon. The Arbitrator described Ms O’Brien’s evidence as “self-serving and lacking credit”. He described that of Ms Gerardis as “unreliable and lacking credit on what occurred in the meeting of 16 May 2020 [sic, 2017]”. He noted that Ms Gerardis’s evidence was “very much in concert with that of Ms O’Brien, although heavily qualified as to her diminished memory of events of May 2017”. The Arbitrator noted there was “no statement from Ms Gordon”.[78]
[78] Reasons, [113]–[115].
The Arbitrator said that where “Ms O’Brien and Ms Gerardis differ from the [respondent], I prefer [the respondent’s] account”. He found the respondent’s “contract was terminated by Ms O’Brien in the meeting in her office on 16 May 2017”. He did not accept the respondent had been verbally abusive and physically intimidating when asking a question of Ms Gordon, nor did the respondent resign from his contract.
The Arbitrator then dealt with the question of whether the respondent had suffered a psychological injury. He noted a submission by the appellant that Dr Dinnen’s opinion was not entitled to weight because the doctor did not have a history of the respondent’s travel. The Arbitrator referred to his previous discussion of the respondent’s evidence regarding travel (see [37] to [39] above). He said that Dr Dinnen did not ask the respondent about overseas travel, this did not negate the doctor’s opinion regarding ‘injury’. The Arbitrator noted his acceptance that the respondent “took his symptoms with him on the trips with his wife”. He said the travel tended to support the claim of injury, because the symptoms continued to impact the respondent while he was in Europe at the behest of his wife. The Arbitrator said that Dr George was told of the travel to Europe and the Pacific cruise yet assessed impairment at the same level as Dr Dinnen and said it directly related to work circumstances.[79]
[79] Reasons, [117]–[121].
The Arbitrator said he was satisfied the workplace was, for the respondent and others, a toxic environment, with an atmosphere of fear and intimidation. He noted Ms O’Brien did not deny “specific instances outlined by [the respondent] and his colleagues involving her before 16 May 2017”. The Arbitrator said the psychological condition was “already present by 16 May 2016 [sic, 2017] but was significantly worsened by the termination of the contract on that day, and further by the subsequent formal complaint processes and what [the respondent] viewed as unsatisfactory outcomes”. He accepted Dr Dinnen’s opinion that the respondent suffered from “adjustment disorder with anxiety and depressed mood [which] is now Major Depressive Disorder”. He accepted that the injury was suffered “with the [appellant]”, before 16 May 2017 and during the period following through the complaint processes and outcomes. He found the injury fell under s 4(b)(i) of the 1987 Act.[80]
[80] Reasons, [122]–[125].

The Arbitrator found that employment was the main contributing factor to the injury. There were “no other factors” that competed with it as a cause.[81]
[81] Reasons, [126].
The Arbitrator then addressed the appellant’s defence pursuant to s 11A of the 1987 Act. He noted an apparent inconsistency, in that the appellant argued the respondent was not dismissed, and simultaneously argued that it had a defence on the basis that the psychological injury was wholly or predominantly caused by its reasonable action in respect of ‘dismissal’. The Arbitrator said that, as he had found there was a dismissal, he would deal with the s 11A(1) defence.[82] He concluded that the defence failed. He said the appellant could not establish that the injury resulted ‘wholly or predominantly’ from its actions with respect to discipline. He said the psychiatric condition developed before the termination although the termination made the respondent worse. The Arbitrator said the later events, the “formal complaints and negative outcomes” significantly worsened the condition.
[82] Reasons [129]–[131].
The Arbitrator referred to a decision of Balranald Shire Council v Walsh[83] as a matter where an employer’s failure to follow its own procedures, in matters of discipline, led to a finding that its actions were not reasonable.[84] The Arbitrator referred to the circumstances surrounding the termination on the afternoon on 16 May 2017. He concluded the respondent was not shown procedural fairness, and the appellant had not discharged its onus “regarding reasonable action”.[85]

GROUND NO. 1

The Arbitrator erred in law by failing to consider all the evidence before him when deciding what occurred in the ‘morning meeting’.

[83] [2013] NSWWCCPD 47, [50].

[84] Reasons, [145].

[85] Reasons, [132]–[152].

Appellant’s submissions

The appellant refers to the reasons at [104] where the Arbitrator said:
“Mr Hoole was interviewed by Ms Van Berlo and his comments reported by her were that he was in another part of the office to the meeting area and could not hear the detail of the discussion but did hear Mr Sadler being ‘abrupt’ with Ms Gordon.”
The appellant submits that Mr Hoole was a “totally independent witness”. It submits that the Arbitrator failed to refer to emails, sent by Mr Hoole to Ms Gordon immediately after the meeting and to himself on the following day, recording contemporaneous accounts of the meeting. It submits the Arbitrator also failed to consider verbal evidence given by Mr Hoole to Ms Van Berlo, that the respondent “attacked” Ms Gordon. The appellant submits that the failure to refer to this specific evidence “may indicate that there was a failure to consider it”. It submits that failure to consider all of the relevant evidence is a jurisdictional and legal error.[86]
[86] Appellant’s submissions, [10]–[11].
The appellant also refers to this in its submissions dealing with Ground No. 6. It there submits that Mr Hoole’s email was the subject of submissions by the respondent’s counsel at the hearing and was “plainly an important piece of evidence”.[87] In its submissions in reply the appellant submits that the failure to take account of “important evidence”, including Mr Hoole’s email, was critical to the assessment of the respondent’s credibility, which in turn was critical to determination of the issues as a whole.[88]
[87] Appellant’s supplementary submissions, [16].
[88] Appellant’s submissions in reply, [9].

Respondent’s submissions

The respondent notes that Mr Hoole did not provide a statement and no reason was given for this. The evidence from Mr Hoole consisted of two emails dated 16 and 17 May 2017, and a point form summary of a telephone conversation with Ms Van Berlo, an investigator appointed by the appellant. The notation on the investigator’s Summary of Enquiry suggests that the investigation was concluded on 12 January 2018. Mr Hoole, on 11 December 2017, forwarded Ms Van Berlo a copy of his email dated 17 May 2017, so that email was taken into account by Ms Van Berlo.[89]
[89] Respondent’s submissions, [3]–[4].
The respondent submits that the appellant, in its submissions at first instance, referred to the contents of the email, but no submission was otherwise made about it.[90] The respondent submits an email “can only have certain weight”. Reference is made to Symbion Health Limited v Jimmy Franks & Linfox Australia Pty Limited in which Moore ADP said that “a statement that is unsigned and not adopted is not a proper statement, is unsubstantiated, and is not in effect evidence at all”.[91] The respondent refers to the bulk of the material lodged by the parties in this matter, which he calculates as 1,986 pages. He refers to State of New South Wales v Stokes,[92] submitting “it was not for the arbitrator to go through the documents to try to find material that supported the appellant’s case”. It was “for the appellant, or its legal advisers, to take the Arbitrator to relevant material”.[93]
[90] Respondent’s submissions, [5].
[91] [2007] NSWWCCPD 93, [61].
[92] [2014] NSWWCCPD 78, [84]–[86].
[93] Respondent’s submissions, [6]–[8].
The respondent submits there was no reference to Mr Hoole’s email dated 16 May 2017 (to Ms Gordon) in the submissions, and no complaint can be made about the Arbitrator’s lack of reference to it. The respondent accepts the email dated 17 May 2017 was “read onto the record during submissions”. The respondent notes the word “attacked” appeared in Ms Van Berlo’s summary of Mr Hoole’s description of events but did not appear in the email dated 17 May 2017.[94]
[94] Respondent’s submissions, [9].
The respondent submits the only comment directed specifically at the respondent, in Ms Van Berlo’s summary of Mr Hoole’s description of the event, was that the respondent was “abrupt” with Ms Gordon. The respondent refers to the reasons at [106] and submits that different people can hold different interpretations of the same event, referring to terms such as “‘condescending’ or ‘grandstanding’ or measured and reasonable”. The respondent submits that whether Mr Hoole was a witness with “‘no axe to grind’ … could only be determined if he provided a statement and was tested in cross examination. It is not particularly relevant, in any event.”[95]
[95] Respondent’s submissions, [12], [19]–[20].

Consideration

The respondent submits that whether Mr Hoole was a witness with “no axe to grind” could only be determined “if he provided a statement and was tested in cross examination”.[96] The appellant did not rely on a formal statement from Mr Hoole and he was not cross-examined. The appellant relied on the evidence from him that is described below. For reasons given below the weight to be ascribed to the evidence from Mr Hoole was a matter for the Commission, the Arbitrator who determined the matter at first instance. In the Commission cross-examination is discretionary. It depends on the interests of justice and the facts and circumstances of the individual case.[97] As a general proposition, the above submission by the respondent is inconsistent with JB Metropolitan Distributors Pty Ltd v Kitanoski in which Roche DP said:
“Subject to the relevant issues having been fully and fairly ventilated in the documentary evidence, and the parties having had a reasonable opportunity to make appropriate submissions on those issues, it is open to an Arbitrator to form a view about the credit of a witness or a party even if that witness or party has not given oral evidence or been cross-examined (New South Wales Police Force v Winter [2011] NSWCA 330 from [81]).”[98]
[96] Respondent’s submissions, [19].
[97] Aluminium Louvres & Ceilings Pty Ltd v Zheng [2006] NSWCA 34, [37].
[98] [2016] NSWWCCPD 17, [121].
Mr Hoole’s ‘sign off’ in his emails described him as “Specialist Program Coordinator/Health & Safety Directorate”. His email to Ms Gordon dated 16 May 2017, leaving aside formal parts, read:
“Just heard that and I am not sure who those people are, but that is definitely not an ok way to address something.
Happy if you need a debrief or anything.”[99]
[99] Reply, p 331.
Mr Hoole’s email dated 17 May 2017, to himself, was headed “Summary of event” and read:
“At around 8.40 I was sitting at my desk and overheard Dianne going into the area of the ISU. As she went in I heard Dale start to talk and the tone that he was speaking caught my ear. Dale was speaking quite abruptly and stated words to the effect of ‘how come you have been telling people that we are the barrier to this process?’ in front of the consultants. Dianne responded by starting to say that she did not say this and that tried to explain why the review was occurring. Dale then jumped in and said in quite an abrupt tone that she did say that because they had heard it and ‘it was again another example of the us and them mentality that always seemed to blame the operators’. There was a bit more talking that I didn’t quite hear which seemed to conclude with one of the consultants speaking and Dianne returning to her desk.
Dianne appeared to be quite shaken by this and I sent the below email [dated 16 May 2017] to make sure she was alright. We went into the quiet room after the email and she was obviously upset and teary and was doubting herself to manage the situation. The communication in my opinion was not appropriate in an office situation but also not appropriate in front of external staff.”[100]
[100] Reply, p 330.
The email dated 17 May 2017 was forwarded by Mr Hoole to Ms Van Berlo under cover of an email dated 11 December 2017 which, excluding formal parts, said:
As per our discussion please find my account of the event from what I was able to hear. I was located in the next bay on level 8 Bankstown from where the incident occurred.”[101] (emphasis added)
[101] Reply, p 330.
Mr Hoole’s description of what occurred was not reduced to a formal statement. He did, in composing the email to himself dated 17 May 2017, set out his contemporaneous recollection of events. He adopted this account in his email dated 11 December 2017 to Ms Van Berlo, who was investigating the incident. Ms Van Berlo’s report[102] described Mr Hoole as “Witness 10”. It referred to “phone contact” and “information on interview (phone)”. The summary of Mr Hoole’s version included a note that the “other staff were unsure of who the consultants were” and that Ms Gordon “approached staff to speak with them and was attacked”. It said that Mr Hoole “[c]ouldn’t hear detail of conversation”. The summary of Mr Hoole’s account is generally consistent with the email dated 17 May 2017. The respondent correctly submits that the reference to Ms Gordon being “attacked” did not appear in the email dated 17 May 2017.[103]
[102] Reply, pp 250–259.
[103] Reply, p 254.
The respondent submits Mr Hoole’s email to Ms Gordon dated 16 May 2017 (see [61] above) was not specifically relied on by the appellant in its submissions at first instance, and the Arbitrator did not err in failing to refer to it.[104] The email dated 16 May 2017 is effectively incorporated into the email dated 17 May 2017 (see the opening of the second paragraph, quoted at [62] above). It is referred to in the passage from the email dated 17 May 2017 that was quoted in the appellant’s submissions to the Arbitrator.[105] It is artificial to submit that it was not raised at first instance.
[104] Respondent’s submissions, [8]–[9].
[105] T 108.34.
The appellant specifically addressed the Arbitrator on Mr Hoole’s email dated 17 May 2017. The appellant’s counsel described Mr Hoole as a person who did not “have an axe to grind”. The transcript is consistent with the longer email having been read out in its entirety,[106] as the respondent’s submissions accept.[107] The appellant relied on these emails before the Arbitrator.
[106] T 108.16–109.7.
[107] Respondent’s submissions, [10].
The respondent’s submissions raise the issue of what weight should have been given to the emails, which were not in the form of a statement and were unsigned. In Onesteel Reinforcing Pty Ltd v Sutton Basten JA said:
“… the reasoning in Hevi Lift was not directly applicable, the Commission not being bound to apply the rules of evidence. There is no warrant, however, in the statute or the general law relating to procedural fairness, to import into the legally mandated procedures of the Commission, limitations on the material which can be considered, derived from the rules of evidence.
Once it is accepted that certain material may be considered by the Commission, the weight to be given to the material is a matter for the Commission itself. Indeed, once inadmissible evidence is before a court without objection being taken, the question for the court is merely one of weight: Makita at [86], last sentence.”[108]
[108] [2012] NSWCA 282 (Sutton), [82]–[83].
In the same case Allsop P said:
“The relationship between the rules of evidence and hearings by the Commission is made clear by the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the ‘WIM Act’), s 354. The rules of evidence do not apply. Thus, there is no prohibition on hearsay material and opinion evidence. Nevertheless, as the cases discussed by McColl JA (for example, Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43) show, the Commission is required to draw its conclusions from material that is satisfactory, in the probative sense, in order that it act lawfully and in order that conclusions reached by it are not seen to be capricious, arbitrary or without foundational material.
Rule 15.2 of the Workers Compensation Commission Rules 2010, provides that evidence should be logical and probative, be relevant to the facts in issue and the issues in dispute, not be based on speculation or unsubstantiated assumptions, nor should it be in the form of unqualified opinions. The relationship between these requirements and lawful discharge of power at general law based on relevant material need not be explored. It suffices to say that Rule 15.2 represents a sound approach for the reliable disposition of important cases for individuals. It is not a reintroduction of the rules of evidence. Were the rule to be such a reintroduction, it would confront the inconsistency of the statute (in s 354). Thus, when one is considering the probative value of an expert report, for instance, the question is not whether it is admissible, but whether it provides material upon which the Commission was entitled to act.”[109] (citations omitted)
[109] Sutton, [2]–[3].
The principles previously set out in r 15.2 of the Workers Compensation Rules 2010 are now found in r 73 of the Personal Injury Commission Rules 2021.
The material referable to Mr Hoole included the three emails, together with those passages from Ms Van Berlo’s report that summarised Mr Hoole’s version following telephone contact with him. The summary in Ms Van Berlo’s report has aspects that were not in the emails, being the references to Ms Gordon being “attacked” and to staff being unsure of who the consultants were. This may well suggest that the material obtained by telephone supplemented the material in the emails. On its face the material from Mr Hoole was entitled to weight. It was a relatively contemporaneous description of what Mr Hoole said he heard on the morning of 16 May 2017, and in what circumstances. Mr Hoole adopted it for the purposes of Ms Van Berlo’s investigation. It was relevant to the issues between the parties. The weight to be given to this material was a matter for the Commission, at first instance the Arbitrator hearing the matter.
The consideration of Mr Hoole’s material was set out in the reasons at [104] (see [53] above). That passage described matters that may have hindered Mr Hoole’s ability to hear what transpired in the ISU. The only positive description in the reasons of what occurred, based on Mr Hoole’s material, was the reference to the respondent being ‘abrupt’ with Ms Gordon. When this is compared with the longer of the emails, and the additional matters referred to in Ms Van Berlo’s report, it is apparent that the reasons at [104] failed to deal with much of what Mr Hoole said that he heard and in what circumstances.
The Arbitrator’s resolution of the conflicting evidence regarding what happened at the ‘morning meeting’ is described in summary at [40] to [43] above. He regarded the weight to be given to the statement of Mr York as affected by its lack of contemporaneity. He referred also to Mr York’s “personal involvement in the question”. He did not accept Ms O’Brien’s evidence of the respondent being verbally abusive and physically intimidating towards Ms Gordon, noting correctly that Ms O’Brien was not present at the morning meeting. The evidence from Mr Hoole, regarding what happened at the morning meeting, was in significant part contemporaneous, described what Mr Hoole heard, came from a person who was not obviously partisan and who was submitted to be disinterested.
The evidence about what happened at the morning meeting included an email from Mr York to Ms O’Brien dated 16 May 2017 at 1:54 pm.[110] That email spoke of Ms Gordon being ‘grandstanded’ by the respondent and referred to the “condescending voice” employed by the respondent. Mr York’s undated statement[111] described the respondent speaking in a “loud voice” to Ms Gordon at the morning meeting and referred to the respondent’s “demeanour and condescending nature” when he spoke. The evidence from Mr Hoole had the capacity to tend to corroborate that of Mr York. It was relevant to an assessment of the evidence as a whole, in dealing with the competing evidence. The Arbitrator was not obliged to accept it, but it was clearly relevant. It had the capacity to affect the result.
[110] AALD 14/10/20, p 1.
[111] AALD 14/10/20, pp 2–3.
In Waterways Authority v Fitzgibbon Hayne J said:
“Rather, because the primary judge was bound to state the reasons for arriving at the decision reached, the reasons actually stated are to be understood as recording the steps that were in fact taken in arriving at that result. Understanding the reasons given at first instance in that way, the error identified in this case is revealed as an error in the process of fact-finding. In particular, it is revealed as a failure to examine all of the material relevant to the particular issue.”[112]
[112] [2005] HCA 57; 79 ALJR 1816, [130].
In failing to consider a significant part of the evidence from Mr Hoole the Arbitrator overlooked material facts. This constitutes appealable factual error.[113] Ground No. 1 succeeds.
[113] Raulston, [19].

DISPOSITION OF THE APPEAL

The above is sufficient that the appeal is entitled to succeed.
The appellant submits that the matter should be remitted to a different arbitrator for re-determination.[114] The respondent does not address what orders should be made if the appeal succeeds.
[114] Appellant’s submissions, [22], appellant’s supplementary submissions, [29].
It is a matter which raises credit issues. The respondent gave oral evidence before the Arbitrator and was cross-examined. The Arbitrator dealt with the issue of the respondent’s credit, at least in part, by reference to the impression he formed of the respondent when giving oral evidence.[115] The basis on which the appeal succeeds is a failure to consider the whole of the relevant evidence dealing with what happened in the meeting on the morning of 16 May 2017. This will necessarily involve a consideration of what evidence should be accepted relating to that meeting, including in light of that evidence from Mr Hoole which was not dealt with initially. This is likely to involve a consideration of credit issues.
[115] Reasons, [89]–[101].
A number of the remaining appeal grounds relate to alleged error in how the Arbitrator dealt with issues of credit, or with factual findings that are, to a greater or lesser extent, associated with evidence where credit may be an issue. It is not appropriate that I seek to re-determine the matter in the circumstances and neither party submits that I should. What occurred at the morning meeting on 16 May 2017 is a relevant matter to be determined in the case. It involves questions of the acceptance and rejection of competing versions of events, which will involve, amongst other things, that evidence from Mr Hoole which was not dealt with initially. It will be necessary that credit be dealt with on the rehearing, in circumstances where the lay evidence will be different to the original hearing, because additional evidence from Mr Hoole will need to be dealt with. It is preferable that I do not deal with the remaining grounds of appeal. The appropriate course is that the matter be re-determined by a different member.

DECISION

The Certificate of Determination dated 18 December 2020 is revoked.
The matter is remitted for re-determination by another member.

Michael Snell
DEPUTY PRESIDENT

10 August 2021