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

1. 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.

1. 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.

1. 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.

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

Has the Arbitrator given Adequate Reasons for the Decision?

1. 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.

1. 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.   

1. 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.

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

1. 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 decision, the reasons are inadequate.  In the circumstances of this case, given the lack of transcript, incomplete record of evidence and loss of the Commission file, I cannot be satisfied that the Arbitrator exercised his power to make the decision fairly and lawfully.  The written reasons now provided do not cure these defects.  The failure to provide adequate reasons is an error of law.  This is reason enough to revoke the decision.

Is the Arbitrator’s Decision supported by the Evidence?

1. The Appellant submits that the Arbitrator’s acceptance of the credibility of the witnesses must not be disturbed on appeal.  Where the Arbitrator accepted Ms Sartor as credible and persuasive, he is entitled to rely upon her evidence in support of the necessary fact-finding that led to his decision.

1. Clearly, the Arbitrator’s decision was not based solely upon the credibility of Ms Sartor, as assessed when she gave oral evidence.  The Arbitrator referred at length to medical evidence.  He gave reasons for rejecting the evidence of Dr Snowdon and preferring the evidence of Dr Jolly.  He also dealt properly with the evidence of numerous witnesses. 

1. 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.  The Appellant has the burden of proving that the Arbitrator made an error in failing to make the decision on the basis of logically probative evidence.  However, it would be plainly unfair to hold the Commission’s administrative failures against the Appellant in this regard.

Future Conduct

1. I am satisfied that the Arbitrator has made an error of law and that the decision of 28 November 2003 should be revoked.  This matter has now been on foot in the Commission since 30 June 2003. It should be remitted back to another Arbitrator, to be considered afresh, including affording the parties the opportunity to come to an agreement, as soon as possible. 

DECISION

1. The decision of the Arbitrator, dated 28 November 2003, is revoked.

1. This matter is referred to the Registrar for allocation to another Arbitrator to be determined as soon as possible.

Dr Gabriel Fleming

Deputy President  

12 November 2004

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE