Snow Confectionary Pty Ltd v Askin - [2004] NSWWCCPD 79

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Fraternity Bowling & Recreation Club Ltd v Sartor [2004] NSW WCC PD 79
APPELLANT:  Fraternity Bowling & Recreation Club Ltd
RESPONDENT:  Josephine Sartor
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER:  WCC 11669-2003
DATE OF ARBITRATOR’S DECISION:          28 November 2003
DATE OF APPEAL DECISION:  12 November 2004
SUBJECT MATTER OF DECISION: No transcript; No statement of reasons; Inadequacy of reasons; No ‘Arbitrator File’; Remittal to Arbitrator; Sections 352, 354 and 367 of the Workplace Injury Management and Workers Compensation Act 1998.
PRESIDENTIAL MEMBER:  Dr Gabriel Fleming, Deputy President
HEARING:21 September 2004
REPRESENTATION:  Appellant: QBE Workers Compensation In-House Legal Department
Respondent: Whitelaw McDonald Solicitors & Attorneys

ORDERS MADE ON APPEAL: The decision of the Arbitrator, dated 28 November 2004, is revoked.
This matter is referred to the Registrar for allocation to another Arbitrator to be determined as soon as possible.

THE APPEAL

This is the second determination in this appeal. The relevant background and details of the appeal are set out in Fraternity Bowling & Recreation Club Ltd v Sartor [2004] NSW WCC PD 47.

As a result of the previous appeal decision, the Arbitrator has provided written reasons, dated 13 August 2004. A hearing was held on 21 September 2004 to allow the parties to make further submissions.

The Appellant continues to press all grounds of appeal, namely that the Arbitrator erred in:
·Failing to give any or adequate reasons for his decision;
·Failing to give appropriate weight to the evidence, and
·Making decisions on matters that were not in issue.

The Respondent submits the Arbitrator’s decision should be confirmed.

Has the Arbitrator given Adequate Reasons for the Decision?

The Arbitrator has attempted to reconstruct the reasons for decision, some ten months after he gave them orally at the conclusion of the hearing. This was necessary because the transcript of the proceedings, and consequently a record of the reasons, was unavailable.

The Respondent argues, correctly in my view, that there is no requirement to give lengthy reasons that detail each and every piece of evidence regardless of its veracity and material relevance. The Respondent submits that the reasons given in writing by the Arbitrator are adequate and they reflect the Arbitrator’s forensic advantage of seeing and hearing the witnesses.

The Arbitrator states in the reasons that:

·He reconstructed his reasons using only the documents lodged with the Commission, and the orders he made;
·The Commission file had been destroyed;
·The orders made had not been complied with and critical evidence, such as the statement of Adam Sartor, had not been filed, and
·He had little recall of the witnesses who appeared and gave evidence at the Arbitration.

This is an unfortunate situation, which is not the fault of either party to the proceedings, or in large part, the Arbitrator.

In my view, I have no option but to conclude that, notwithstanding that the Arbitrator has now had the opportunity to provide written reasons for…

Grounds of appeal

[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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Details

Case: [2004] NSWWCCPD 79
Decision Date: 12 November 2004

CaseChat Overview and Summary

The case of Snow Confectionary Pty Ltd v Askin involves a dispute over workers' compensation that was brought before the Workers Compensation Commission. The Appellant, Fraternity Bowling & Recreation Club Ltd, appealed against a decision made by an Arbitrator, with the Respondent being Josephine Sartor. The case was heard by Dr Gabriel Fleming, Deputy President, on 21 September 2004. The primary issue in the case was whether the Arbitrator provided adequate reasons for his decision, gave appropriate weight to the evidence presented, and made decisions on matters that were not in issue.

The Arbitrator had provided written reasons for his decision, which was dated 13 August 2004, after a transcript of the proceedings and a record of the reasons were found to be unavailable. The Appellant argued that the Arbitrator erred in failing to give any or adequate reasons for his decision, failing to give appropriate weight to the evidence, and making decisions on matters that were not in issue. The Respondent, however, submitted that the Arbitrator's decision should be confirmed, and that the written reasons provided were adequate.

Dr Fleming found that the Arbitrator had attempted to reconstruct the reasons for decision using only the documents lodged with the Commission and the orders he made. The Commission file had been destroyed, and the orders made had not been complied with, leading to the absence of critical evidence. Additionally, the Arbitrator had little recall of the witnesses who appeared and gave evidence at the Arbitration. Despite the Respondent's argument that there was no requirement to give lengthy reasons that detail each and every piece of evidence, Dr Fleming concluded that the reasons were inadequate due to the lack of a transcript, incomplete record of evidence, and loss of the Commission file. As a result, the Arbitrator could not be satisfied that the decision was made fairly and lawfully.

In conclusion, the decision of the Arbitrator dated 28 November 2003 is revoked, and the matter is referred to the Registrar for allocation to another Arbitrator to be determined as soon as possible. This decision was made by Dr Gabriel Fleming, Deputy President, on 12 November 2004.

Orders