State of New South Wales (Southern NSW Pathology Service) v Wu - [2024] NSWPICPD 76

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	State of New South Wales (Southern NSW Pathology Service) v Wu [2024] NSWPICPD 76
APPELLANT:	State of New South Wales (Southern NSW Pathology Service)
RESPONDENT:	Xiu Qin (Caroline) Wu
INSURER:	QBE TMF
FILE NUMBER:	A2-W6602/22
PRESIDENTIAL MEMBER:	Acting Deputy President Paul Sweeney
DATE OF APPEAL DECISION:	28 November 2024
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 3 November 2023 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – adequacy of reasons – findings of credit – rule 78 of the Personal Injury Commission Rules 2021 – Stambolziovski v Nestorovic and Camanaro Prestige Properties Pty Ltd t/as Sydneyhome Real Estate [2015] NSWCA 332 – Pollard v RRR Corporation Pty Limited [2009] NSWCA 110 considered
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr T Grimes, counsel
HWL Ebsworth Lawyers
Respondent:
Mr F Curran, counsel
Carters Law firm
DECISION UNDER APPEAL:	Wu v State of New South Wales (Southern NSW Pathology Service) [2023] NSWPIC 583
MEMBER:	Ms K Garner
DATE OF MEMBER’S DECISION:	3 November 2023

INTRODUCTION

This appeal concerns the adequacy of the reasons given by the Member for her finding that Xiu Qin (Caroline) Wu (the respondent) was a reliable witness.
The respondent first worked as a pathology collector in 2000. On 7 June 2010, she commenced part time employment in that capacity for the State of New South Wales (Southern NSW Pathology Service) (the appellant) at the Sutherland Hospital working 16 hours a week. Throughout this employment she worked concurrently for Specialist Diagnostic Services, part of the Laverty Pathology Group, and at the Caringbah Medical Centre.
After commencing work with the appellant, the respondent experienced difficulties in her relationship with her Nursing Unit Manager, David Matthews. On 18 February 2011, she wrote to Anne Marie McDougall, the appellant’s Central Network Manager, complaining that Mr Matthews did not roster her for her contracted hours; refused her application for annual leave; suggested that she resign; and intimidated her when these issues were raised.[1] After an interlude, these difficulties recurred.
[1] Application to Resolve a Dispute (ARD), p 41.
On 24 March 2013, the respondent wrote to the appellant’s Human Resources Manager, Julian Hackenberg, complaining that Mr Matthews had refused to provide her with a storeroom key and had treated her “unfairly regarding compulsory fire training”.[2] On 11 May 2013, she wrote to Mr Matthews responding to his request for a meeting regarding her sick leave. She indicated that she would only attend a meeting with Mr Matthews if a manager from the appellant’s human resources department was in attendance. She also expressed concern about changes proposed by Mr Matthews to her “flexible rotating roster system”.[3] During 2013, the respondent escalated her complaints about Mr Mathews through the ranks to the appellant’s executive team. She complained that allegations of harassment and victimisation that she had raised had not been “acknowledged” by the appellant. She stated that she was seeing a psychologist, Ms Ling.
[2] ARD, p 44.
[3] ARD, p 47.
The respondent’s letters of complaint concerning her working conditions and her interaction with Mr Matthews culminated in an exchange of letters with Dr Trevor Cobain, the Acting Network Director of the appellant. An internal fact-finding enquiry into the respondent’s complaints conducted by Mr Hackenberg found that the actions of Mr Matthews with respect to the provision of a storeroom key and fire training was not inappropriate “or against the standards outlined in the NSW Health Code of Conduct”.[4] When she did not obtain satisfaction from her employer, the respondent lodged a complaint with the Anti-Discrimination Board NSW. That complaint was dismissed.
[4] Reply to Application to Resolve a Dispute (Reply), p 21.
On 17 June 2013, the respondent met with Mr Hackenberg and Dr Cobain to discuss her difficulties with Mr Matthews and correspondence from her treating psychologist, Ms Ling. Dr Cobain and Mr Hackenberg perceived that she appeared agitated and distressed at the meeting. They requested that she attend a treating doctor to seek medical advice. Following the meeting, the appellant sought clarification of why Ms Ling had certified the respondent as medically unfit to meet with Mr Matthews. It also sought further information from her as to why she was unable to comply with Mr Matthews’ direction in respect of her roster.
On 9 December 2013, Mr Dieter Schultejohann, the appellant’s Patient & Client Services Manager, wrote to the respondent informing her that he was investigating allegations of “unsatisfactory behaviour and misconduct”. She was required to attend an interview with Mr Schultejohann to enable her to “respond to the allegations”.[5]
[5] Reply, p 43.
On 27 February 2014, Associate Professor Robert Lindeman, the Executive Medical Director of the appellant, wrote to the respondent advising her that Mr Schultejohann had sustained five of the allegations of unsatisfactory behaviour or misconduct. She was asked to make a written submission in respect of proposed disciplinary action against her and told that she would be “informed in writing of any final decision on disciplinary action”.[6]
[6] Reply, p 62.
On 5 May 2014, Dr Verma, a general practitioner issued a Certificate of Capacity which stated that the respondent was able to work “usual hours as required” from 3 May 2014 to 5 June 2014.[7] The only restriction imposed on the respondent’s capacity was that she was not to work at the appellant’s premises. The doctor certified that she suffered from adjustment disorder with anxiety and depression as a result of workplace bullying and harassment. The respondent did not return to work for the appellant after 2 May 2014. She made a claim for compensation, which the appellant’s insurer denied on the basis that she had not suffered an injury arising out of or in the course of her employment and that the employment was not a substantial or the main contributing factor to her injury. Alternatively, the insurer stated that her entitlement to compensation was nullified by the operation of s 11A(1) of the Workers Compensation Act 1987 (the 1987 Act) as any injury was wholly or predominantly caused by the appellant’s acts with respect to discipline.
[7] ARD, p 367.
By letter of 28 July 2014, Dr Cobain notified the respondent that further allegations had been made against her in that:
(a) she was unable to be contacted while on duty on Saturday 1 March 2014, and
(b) she refused to meet with Mr Matthews in order to discuss the events of 1 March 2014.
The respondent was given the opportunity to respond to these allegations at a fact-finding meeting or in writing.
On 16 February 2015, the appellant informed the respondent that it was considering terminating her employment and that it required her “to show just cause why your employment should not be terminated”.[8] By letter of 18 May 2015, the appellant terminated the respondent’s employment.
[8] ARD, p 534.

THE ARBITRAL PROCEEDINGS

On 11 October 2022, the respondent lodged an ARD with the Personal Injury Commission (the Commission). She claimed weekly compensation at the rate of $695.87 from 1 March 2014 to 1 November 2015 and at the rate of $1,286.29 from 1 November 2015 and continuing. The Application also claimed an indemnity in respect of the respondent’s medical and hospital expenses pursuant to s 60 of the 1987 Act and the sum of $116,050 pursuant to s 66 in respect of 48% whole person impairment in accordance with the Psychiatric Impairment Rating Scale in Chapter 11 of the SIRA Guidelines for the evaluation of permanent impairment 4^th ed.
The respondent’s incapacity and need for medical expenses was were said to result from a psychological injury which occurred between 18 January 2011 and 1 March 2014.
The dispute between the parties came on for a preliminary conference before Member Garner on 14 November 2022. As the matter could not be resolved, directions were issued for the production of documents and the matter was set down for a conciliation conference and arbitration hearing on 13 February 2023. At the hearing, Mr Grimes, of counsel, appeared for the appellant and Mr Curran, of counsel, for the respondent. The ARD was amended to allege that the psychological injury was a disease of gradual process in accordance with s 4(b) of the 1987 Act deemed to have occurred on 4 March 2014. Mr Grimes stated that the issues for determination were:
“section 4, section 9A, or section 15, 16, main contributing factor, and then section 11A, in terms of discipline …”[9]
[9] Transcript of proceedings 13 February 2023, p 17.
In the event that the respondent succeeded on the threshold issues of injury, main contributing factor, and s 11A(1), the respondent proposed that the matter be referred to a medical assessor to determine her whole person impairment and that the claim for weekly payments be adjourned until after the certification of the medical assessor.
The Member directed the parties lodge written submissions on all issues. By reason of an appeal against the Member’s refusal to admit the appellant’s late documents, the submissions were not completed until 11 October 2023. The Member delivered a written decision dated 3 November 2023 by which she found for the respondent on the issues of injury and main contributing factor. She also found that the appellant had not proven that the respondent’s psychological injury was wholly or predominantly caused by its reasonable actions with respect to discipline.
The Member ordered the appellant to pay the sum of $29,947.85 pursuant to s 60 of the 1987 Act. She remitted the issue of whole person impairment to the President for referral to a medical assessor and stood over the issue of weekly payments pending the outcome of that determination.
The Member made the following orders in her Certificate of Determination dated 3 November 2023:
“1. The [respondent] sustained a primary psychological injury pursuant to ss 11A(3) and 4(b)(i) of the Workers Compensation Act 1987 (the 1987 Act), with deemed date of injury of 4 March 2014, arising out of and in the course of her employment and, further, the [respondent’s] employment was the main contributing factor to contracting the disease.
2. A defence pursuant to s 11A(1) of the 1987 Act is not established.”

GROUND OF APPEAL

The sole ground of appeal alleged is that:
“The [Member] committed an error of law in failing to provide adequate reasons for her findings.”

ON THE PAPERS

Section 52(3) of the Personal Injury Commission Act 2020 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.”
Having regard to Procedural Directions PIC2 and WC3; the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, 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.

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 Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) have been met.
Mr Grimes devoted several paragraphs of his submissions to establishing that the Member’s decision was not interlocutory. Mr Curran conceded that it was not. The Member ordered the appellant to pay the sum of $29,947.85 in medical and hospital expenses pursuant to s 60. That is undoubtedly a final determination of that issue between the parties. Even if that order had not been made, the determination of the Member is a decision on the issues of injury, main contributing factor, and the application of s 11(A)(1) which finally disposes of the rights of the parties.[10]
[10] Visy Board Pty Limited v Nguyen [2010] NSWWCCPD 101, [22].

SUBMISSIONS

By its submission the appellant refined the ground of appeal. Its attack concentrated on the Member’s finding at [280] where she stated:
“Having carefully considered all the evidence as a whole, I am not persuaded that the [respondent] made any deliberate attempt to deny or mask her pre-existing or non-work-related psychological history. To the contrary, considering the evidence as a whole, I am satisfied on the balance of probability, that the [respondent’s] answers were given honestly and that the [respondent] is a credible witness.”[11]
[11] Wu v State of New South Wales (Southern NSW Pathology Service) [2023] NSWPIC 583 (reasons), [280].
In support of its submission that the Member failed to provide adequate reasons, the appellant referred to s 294 of the 1998 Act and to rules 78(2) and (3) of the Personal Injury Commission Rules 2021 (the Rules). It also referred to several appellate cases which considered the respective duties of a judge and an arbitrator of the former Workers Compensation Commission to provide reasons. Pollard v RRR Corporation Pty Limited[12] and Beale v Government Insurance Office of New South Wales[13] addressed the duty of a judge. M and S Shipman Pty Limited v Matters,[14] Symbion Health Ltd v Ford,[15] and Charles Sturt University v Manning[16] addressed the duty of an arbitrator.
[12] [2009] NSWCA 110 (Pollard), [59].
[13] (1997) 48 NSWLR 430.
[14] [2003] NSWWCCPD 19, [84].
[15] [2008] NSWWCCPD 13, [81] and [83].
[16] [2016] NSWWCCPD 10, [52]–[63].
The appellant described the Member’s findings at paragraph [280] as “a conclusion and not reasons”.[17] It argued that she had failed to refer to the evidence on which the finding was based in accordance with r 78(2), and failed to explain why one case was “preferred over another”. It asserted that the Member’s ultimate findings as to credit were contrary to earlier findings in which she recorded that the respondent had “largely denied” any prior psychological history; had not informed Dr Roberts of aspects of that history; and had not provided a supplementary statement addressing prior psychological history. Further, the Member had accepted that there was inconsistency between the respondent’s psychological history and that “reported by the [respondent] to Dr Roberts and other treating and expert doctors.”
[17] Appellant’s submissions, p 4, [24].
The appellant submits that there was no evidentiary basis for the Member to find that her prior workplace stress was a “relatively minor personal [issue]” which was not “of any significance” when giving medical histories. Secondly, there was no evidentiary basis for her finding that:
“In the circumstances, I consider that the inconsistency can be reasonably explained, to a degree, by the questions asked of the [respondent], the passing of time and possible lapses in the [respondent’s] memory”.[18]
[18] Reasons, [278].
The respondent submits that the reasons of the Member demonstrated an “exhaustive” consideration of the evidence and submissions of the parties over 331 paragraphs and 101 pages. It argued that it was important to bear in mind the terms of s 352(5) of the 1998 Act and the case law which addressed the subsection. It provides for an appeal and not a review or a new hearing. The Member’s finding that the respondent was a credible witness was:
“a finding of fact based on a full considered analysis of all the evidence and was clearly open and available to the Member”.[19]
[19] Respondent’s submissions, [27].
It is apparent from the short review of the submissions that the appeal is essentially concerned with the Member’s consideration of the respondent’s credit in the context of her complaints to medical practitioners before the commencement of her employment with the appellant or before the deemed date of injury. It was the appellant’s contention at the hearing that the respondent’s failure to divulge aspects of her medical history to medical practitioners after the deemed date of injury necessitated the making of an adverse finding as to her credit.
By its written submission the appellant identified three events in the respondent’s medical history that she allegedly failed to disclose. It referred to her attendance at the St George Hospital on 29 December 2012 and its sequelae in the body of its submissions. It referred to an attendance on Dr Teo on 3 June 2009 and on Ms Ling on 8 January 2013 in its chronology. However, it also refers to the report of Dr Roberts dated 4 February 2023. It criticises the respondent’s failure to provide “any supplementary statement” addressing Dr Roberts’ comprehensive summary of her medical history. It is, therefore, necessary to briefly address the evidence on which Dr Roberts relied in concluding that the respondent was not a reliable witness.
The respondent’s clinical history, including her attendance at the St George Hospital on 29 December 2012, is obviously relevant to issues in the case other than her credit. It is relevant to the issues of injury and main contributing factor. It may be difficult to give weight to medical opinion that is based on an incomplete history. The Member’s findings on these issues are not the subject of this appeal.
Arguably, the respondent’s evidence is also, at times, inconsistent with the appellant’s lay evidence. The appellant has not referred to this conflict in this appeal. Thus, it is unnecessary to reiterate the extensive lay evidence lodged by both parties in this appeal.

EVIDENCE

In its primary submission in the arbitral proceedings[20] the appellant enumerated the documentary evidence by which it alleged that the respondent “denied or did not disclose a pre-existing condition”. These included her signed statements dated 29 September 2022[21] and 13 April 2024;[22] her letters to the Anti-Discrimination Board of NSW dated 11 April 2014[23] and Assoc Professor Lindeman dated 22 February 2015;[24] the histories provided to Dr Stevans, psychiatrist, in his initial report of 24 June 2016,[25] to Dr Protulipac, psychologist, in his reports of 10 June[26] and 30 July 2014[27] and 18 November 2015;[28] and to Dr Zhang in his report of 15 August 2014.[29]
[20] Appellant’s submissions 27 February 2023, p 1.
[21] ARD, p 8.
[22] ARD, p 138.
[23] ARD, p 113.
[24] ARD, p 160.
[25] ARD, p 172.
[26] ARD, p 181.
[27] ARD, p 183.
[28] ARD, p 184.
[29] ARD, p 483.
The appellant also referred to the histories contained in the reports of specialist medical practitioners who saw the respondent at the request of her solicitor or the solicitor for the appellant. They include Dr Mark Kneebone, psychiatrist, dated 16 June 2014; Dr Kuljic,[30] psychiatrist, dated 22 November 2021; Dr Doron Samuell, psychiatrist, dated 9 December 2016; and Dr Wendy Roberts, psychologist, dated 1 May 2018, 29 June 2022, and 4 February 2023.[31]
[30] ARD, p 1,210.
[31] Schedule of Documents (SOD), 22 June 2023, p 1.
I refer to aspects of this evidence further below. It is summarised in the Member’s decision. With the exception of its reference to reports of Dr Roberts, the appellant did not specifically address this evidence in its submission on appeal. Conversely, the respondent did not argue that this evidence contained any disclosure of a pre-existing psychiatric condition.
By its further submission at the arbitration hearing dated 23 August 2023, the appellant referred extensively to the report of Dr Roberts dated 4 February 2023, in which she reviewed the clinical records of medical practitioners who treated the respondent from 7 December 2007. Much of that material is attached to a Schedule of Documents lodged in compliance with the orders of the President dated 15 June 2023. The appellant argued that the following aspects of the evidence “indicates the [respondent] had a pre-existing condition”.

On 7 December 2007, the respondent saw Dr Kevin Tai,[32] a general practitioner, who recorded that she was “stressed at work, headache and dizzy”. She requested medication to relieve her stress and a medical certificate as she had “left work early”.
[32] SOD, p 62.
On 18 December 2007, the respondent saw Dr Yip, a general practitioner complaining of stress and insomnia following the failure of a property settlement. She was prescribed Temaze.[33]
[33] SOD, p 61.
On 8 July 2008, following a consultation, Dr Yip wrote a letter which stated:
“I saw Ms Yiu Quin Wu this morning.
She is under stress and can’t sleep and also her blood pressure is elevated.
She is involved in a dispute with her employer and the case is before the courts.
She is given medications for her sleep and general advice was given to manage her stress.”[34]
[34] SOD, p 63.
On 10 February 2009, Dr Lo recorded that the respondent complained that she was treated poorly by her manager at Primary Healthcare who had refused her application for annual leave. He recorded that she:
“feels very stressed, also other incidents, a Pt urinated onto her shoes, pt then had to changed [sic] shoes (one with slight heel) & as a result was reported & told off by the manager. Pt felt her BP has increased, was on 2.5mg Tritace, recently increased to 5mg/d”.[35]
[35] SOD, p 60.
On 2 and 3 June 2009, the respondent saw Dr Zhu, who certified her unfit for work for two days. The respondent complained of feeling “very stressed” after receiving a letter from her manager. Dr Zhu noted that the reason for contact was “work-related stress and high BP”.[36]
[36] SOD, p 59.
On 29 December 2012, the respondent presented at the emergency department of the St George Hospital with “suicidal thoughts” following an altercation with a new tenant at her residential property. The police had referred her. She was described as “anxious and tearful”. She was discharged to the care of her general practitioner.[37]
[37] SOD, p 43.
The progress notes of the hospital record a conversation on 1 January 2013 between a registered nurse and the respondent’s husband, who reported that she “remained disturbed”. On 11 January 2013, the respondent stated that she was not very well and had scored 43/50 on a depression scale administered by her GP[38].
[38] SOD, p 55.
In its initial submissions at the arbitration hearing, the appellant set out several paragraphs from Dr Roberts’ report of 29 June 2022,[39] which addressed the respondent’s pre-injury health. It submitted that these extracts were relevant both to the existence of a pre-existing condition and to her reliability. Two of the quoted passages are as follows:
“The letter of instruction to me also summarised medical evidence, some of which I had reviewed previously, along with other material which I have not seen. The most relevant of the medical documents (both the ones referred to currently and those which I had reviewed previously) indicated that Ms Wu complained of workplace stress in 2009, when she was given a certificate (3 June 2009) by Dr Teo, for work-related stress and high blood pressure (page 29 of my previous report). There was a gap in those medical records until 11 January 2013, when she was seen for an x-ray of her lumbosacral spine.”[40]
“In my opinion, no firm diagnosis in respect to either DSM-IV or DSM-5 can be made, because of the lack of reliable and valid information, nor can Ms Wu’s complaints be clearly related to the circumstances of employment, particularly if she had pre-existing workplace stress problems and if the trigger for her first visit to a psychologist (Ms Ling on 8 January 2013) related to a completely different set of circumstances, which had nothing to do with the workplace.”[41]
[39] Reply, p 400, [427.95] and [430.9.16].
[40] Reply, p 427, [9.5].
[41] Reply, p 430, [9.16].
In its further submissions at the arbitration hearing, the appellant also quoted from the supplementary report of Dr Roberts dated 4 February 2023 by which the doctor concluded that the respondent’s history was unreliable. That report concludes thus:
“In my opinion, Ms Wu has significant pre-existing personality issues, and which continue. The question asks about a pre-existing physiological illness. This invites medical opinion. Whilst an element of aggravation or deterioration in her underlying issues is not ruled out, it has not been possible to accurately assess this because of her unreliable presentation and test scores. What is evident, however, is that she has a chronic pattern of reacting to a variety of situations in workplaces or elsewhere, causing her to complain of similar issues, regardless of the setting. Her information is not reliable in relation to significant issues. In my opinion, independent information has provided a more accurate conceptualisation of Ms Wu’s functioning over time.”[42]
[42] SOD, p 22.

THE MEMBER’S REASONS

The Member’s consideration of the respondent’s credit commences at [260] of her reasons She states:
“260. The [appellant] has referred to various evidence and numerous occasions in which it alleged that the [respondent] denied or failed to disclose any pre-existing or non-work related psychological condition. The [appellant] submits that the [respondent’s] denials and failures in that regard strongly support a finding that the [respondent] is an unreliable historian, not a witness of truth and her evidence cannot be accepted.
261. The [respondent] was not cross-examined by the [appellant]. That is not necessarily determinative of the issue of credit. As the [appellant] noted, Deputy President Wood held that the Commission is not obliged to accept evidence which is not the subject of cross-examination if it is contradicted by a credible body of substantial evidence: Whelan v Stowe Australia Pty Ltd [2021] NSWPICPD 36 at [134], applying Ali v Nationwide News Pty Ltd [2008] NSWCA 183. Further, subject to the relevant issues being fully and fairly ventilated and parties having a reasonable opportunity to make submissions on those issues, it is open to the Commission to form a view about the credit of a witness or 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, Campbell JA (Giles JA and Handley AJA agreeing) [81] – [86]. I am satisfied that the parties in this case have had a reasonable opportunity to [make] submissions on the issue of the [respondent’s] credit.”
After restating in detail, the evidence on which the appellant relied to impugn the respondent’s credit, the Member continued from [270]:
“270. However, the treating and independent medical evidence does not otherwise record evidence of any significant pre-existing or non-work related psychological or psychiatric condition.
271. I accept that the evidence shows that the [respondent] has largely denied any significant prior psychological or psychiatric history.
272. However, in Dr Roberts’ report dated 1 May 2018, Dr Roberts recorded that the [respondent] did, in answer to Dr Roberts’ question of whether she had ever seen any psychologists, psychiatrists or counsellors, reply “yes” and the [respondent] described seeing a number of psychologists and psychiatrists including Ms Ling who the [respondent] commenced to see in 2013. The [respondent] described seeing a psychologist at Sutherland Hospital ‘when the matter started at the beginning’. Dr Roberts recorded that the [respondent] denied having seen any other psychologists, psychiatrists or counsellors, ever.
273. It is apparent from Dr Roberts’ report that the [respondent] did not inform Dr Roberts of her attendance at the St George Hospital on 29 December 2012.
274. However, as I stated above, it is apparent from the hospital’s records that the [respondent’s] admission was at the instigation of the police and there was no contemporaneous mental health diagnosis at that time. Further, there is no evidence of the [respondent] being referred to a psychologist or psychiatrist prior to the [respondent] being referred to Ms Ling in 2013.
275. I note that Dr Roberts’ report dated 4 February 2023 recorded that the [respondent] claimed that she had never suffered any workplace stresses at all before 2011 when she said that her problems with the [appellant] commenced. As noted by Dr Roberts, the medical evidence does show that the [respondent] did previously report workplace stress on a number of occasions, including in 2008 when the [respondent] was involved in a dispute with her employer and in 2009 when the [respondent] attended Dr Teo.
276. The [respondent] has not provided any supplementary statement which addresses matters raised in the report of Dr Roberts … dated 4 February 2023. The [respondent] has not provided any direct evidence in relation to her capacity, understanding of the significance of relevant events or any lapses in memory with the passage of time.
277. However, as I stated above, there is no evidence that the [respondent] had any contemporaneous formal psychological diagnosis nor that she was referred for psychological treatment prior to 2013. Further, there is no evidence that the [respondent] suffered any prior longstanding or psychological incapacity which was recognised as clinically significant at the time. I accept the [respondent’s] submission that, in the circumstances, it would be reasonable for the [respondent] to have regarded her prior workplace stress as somewhat dated and relatively minor personal issues which she got over quickly and which did not register to her as a mental health issue of any significance in giving history to doctors.
278. I accept that there is some inconsistency between the [respondent’s] psychological history reported by the [respondent] to Dr Roberts and other treating and expert doctors. It appears that Dr Roberts asked particularly targeted questions to elicit information about the [respondent’s] history. In the circumstances, I consider that the inconsistency can be reasonably explained, to a degree, by the questions asked of the [respondent], the passing of time and possible lapses in the [respondent’s] memory.
279. I note that the evidence demonstrates that the [respondent] has fairly consistently reported various work-related events which are the subject of these proceedings.
280. Having carefully considered all the evidence as a whole, I am not persuaded that the [respondent] made any deliberate attempt to deny or mask her pre-existing or non-work-related psychological history. To the contrary, considering the evidence as a whole, I am satisfied on the balance of probability, that the [respondent’s] answers were given honestly and that the [respondent] is a credible witness.”

LEGISLATION

Section 352(5) of the 1998 Act is as follows:
“An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
Section 294(2) of the 1998 Act is as follows:
“A brief statement is to be attached to the certificate setting out the Commission’s reasons for the determination”.
Rules 78(2) and (3) of the Rules are as follows:
“(2) A determination of the appropriate decision-maker in applicable proceedings to which this rule applies is to be accompanied by a brief statement of the appropriate decision-maker’s reasons for the determination that includes the following—
(a)the appropriate decision-maker’s findings on material questions of fact, referring to the evidence or other material on which those findings were based,
(b)the appropriate decision-maker’s understanding of the applicable law,
(c)the reasoning processes that led the appropriate decision-maker to the conclusions made.
(3) Without limiting subrule (2), the reasons are to be stated sufficiently, in the opinion of the appropriate decision-maker, to make the parties to the proceedings aware of the appropriate decision-maker’s view of the case made by each party.”

DISCUSSION

The paragraph of the Member’s reasons which the appellant attacks in its submission is a finding as to credit. In explaining the operation of s 352(5) of the 1998 Act in Raulston v Toll Pty Ltd,[43] Roche DP specifically addressed the limited power of a Presidential member to overturn credibility findings. He stated:
“Sixth, credibility based findings may be overturned if ‘incontrovertible facts or uncontested’ evidence (Fox v Percy at [28]) establish that they were wrong. In rare cases, although the facts fall short of being ‘incontrovertible’, such findings may be overturned if they are ‘glaringly improbable’ or ‘contrary to compelling inferences’ in the case (Fox v Percy at [29] citing Brunskill v Sovereign Marine & General Insurance Co Ltd [1985] HCA 61; 59 ALJR 842 at 844 and Chambers v Jobling(1986) 7 NSWLR 1 at 10)”[44].
[43] [2011] NSWWCCPD 25 (Raulston).
[44] Raulston, [26].
In Goodrich Aerospace Pty Limited v Arsic,[45] Ipp JA (Mason P and Tobias JA agreeing), following Fox v Percy,[46] held that a failure by a judge in making a credibility-based finding to deal with an “improbability constituting a ‘governing fact’ may constitute an error in the process of fact-finding”. It is not evident that there is any significant difference between a finding that is inconsistent with a “governing fact” and one that is “glaringly improbable”.
[45] [2006] NSWCA 187 (Goodrich).
[46] (2003) 214 CLR 118.
Ipp JA, in Goodrich, contemplated a loosening of the chains which preclude appellate review of credit findings. But the more recent caselaw suggests they remain firmly in place. In Stambolziovski v Nestorovic and Camanaro Prestige Properties Pty Ltd t/as Sydneyhome Real Estate[47] Beazley P, in upholding a credit based finding of the trial judge, said:
“The appellant, in focussing on the contended failure of the trial judge to apply the principles in Fox v Percy, exhibited a misunderstanding of the principle for which that case stands as authority. The critical passage of Fox v Percy, at [28], per Gleeson CJ, Gummow, and Kirby JJ, is as follows:
‘… the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings’.
As is apparent from this passage, Fox v Percy provides a standard of appellate review in respect of a trial judge's findings of fact, rather than creating a threshold that a trial judge must reach before accepting a witness as a witness of credit. The matters of which the appellant complained were matters of credit for the trial judge's determination and did not satisfy any of the tests stated in Fox v Percy.”(My emphasis)[48]
[47] [2015] NSWCA 332 (Stambolziovski).
[48] Stambolziovski, [7]–[8].
In Stambolziovski, Ward JA addressed an issue that is closely related to the critical issue in this case. She stated:
“The fact that evidence given at trial may be inconsistent with earlier statements, for example, is not sufficient to raise a Fox v Percy argument. Prior inconsistent statements are not on any view of the matter incontrovertible evidence.”[49]
[49] Stambolziovski, [77].
As the parties acknowledge in their submissions, the respondent’s credit is relevant to resolution of other issues in this case. The credit of witnesses is often critical to the determination of cases before the Commission. Notwithstanding the reluctance of the parties to adduce oral evidence, even where there are starkly conflicting versions of events, members are frequently asked to make findings of the reliability of witnesses. This will often depend on the consistency of the witnesses’ evidence with the entirety of the evidence in the case. The standard of appellate review of these findings remains as stated by Raulston and Stambolziovski.
The relative inviolability of credit findings does not relieve the finder of fact of an obligation to give reasons. The main thrust of the appellant’s case is that inadequate reasons were given for the credit finding in this case. Plainly, the adequacy of the reasons of a member of the Commission must be determined by reference to the obligation in s 294(2) of the 1998 Act to provide a “brief statement setting out” the reasons for the determination and the requirement of the Rules to state material findings of fact; to refer to the evidence on which the findings were based; and to the reasoning process that led to the conclusions.[50] The reference to “brief reasons” and the objective of informal and expeditious dispute resolution in the legislation suggests that “adequate” reasons need not be lengthy or consider every aspect of the evidence. The fact that members undertake a large volume of work which frequently entails delivering reasons orally or in writing is also supportive of this conclusion. But as the 1998 Act provides for an appeal, it is essential that the reasons are sufficient to permit a Presidential member to discern whether there is error of fact, law, or discretion. From that perspective, the appellate case law addressing the reasons required of a judge may provide guidance. But it does not supplant s 294 or the Rules.
[50] Fisher v Nonconformist Pty Ltd [2024] NSWCA 32, [136]–[139].
In Pollard, a case to which the appellant referred, the trial judge’s reasons are set out in full in the judgment of McColl JA. At the end of a three-day hearing of a contractual dispute in the District Court, the judge’s reasons ran to twenty odd short paragraphs. Her Honour (with whom Ipp JA and Bryson AJA agreed) summarised the principles relevant to the giving of adequate reasons from [56]:
“56.   The Court is conscious of not picking over an ex tempore judgment and, too, of giving due allowance for the pressures under which judges of the District Court are placed by the volume of cases coming before them (Maviglia v Maviglia [1999] NSWCA 188 (at [1]) per Mason P). However a trial judge’s reasons must, ‘as a minimum ... be adequate for the exercise of a facility of appeal’: Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 (at 260) per Kirby P; (at 268 – 269) per Mahoney JA; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 (at 444) per Meagher JA. A superior court, ‘considering the decision of an inferior tribunal, should not be left to speculate from collateral observations as to the basis of a particular finding’: Soulemezis (at 280) per McHugh JA applying Wright v Australian Broadcasting Commission [1977] 1 NSWLR 697 (at 701, 713).
57.    The giving of adequate reasons lies at the heart of the judicial process. Failure to provide sufficient reasons promotes ‘a sense of grievance’ and denies ‘both the fact and the appearance of justice having been done’, thus working a miscarriage of justice: Mifsud v Campbell (1991) 21 NSWLR 725 (at 728); Beale (at 442) per Meagher JA.
58.    The extent and content of reasons will depend upon the particular case under consideration and the matters in issue: Mifsud (at 728) per Samuels JA; Hull v Thompson [2001] NSWCA 359 (at [53]) per Rolfe AJA (Sheller JA and Davies AJA agreeing). While a judge is not obliged to spell out every detail of the process of reasoning to a finding (Yates Property Corporation Pty Limited (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156 (at 171) per Mahoney JA, (at 182) per Handley JA), it is essential to expose the reasons for resolving a point critical to the contest between the parties: North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 (at 442) per Kirby ACJ; Soulemezis (at 259) per Kirby P, (at 270) per Mahoney JA, (at 280) per McHugh JA; applied in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 (at [40]) per Gleeson CJ, Gummow and Heydon JJ.
59.    The reasons must do justice to the issues posed by the parties’ cases: see Moylan v Nutrasweet Co [2000] NSWCA 337 (at [61]) per Sheller JA (Beazley and Giles JJA agreeing). Discharge of this obligation is necessary to enable the parties to identify the basis of the judge’s decision and the extent to which their arguments had been understood and accepted: Soulemezis (at 279) per McHugh JA. As Santow JA (with whom Meagher and Beazley JJA agreed) explained in Jones v Bradley [2003] NSWCA 81 (at [129]) it is necessary that the primary judge ‘ ‘enter into’ the issues canvassed and explain why one case is preferred over another’; see also Flannery v Halifax Estate Agencies Ltd t/as Colleys Professional Services [1999] EWCA Civ 811; [2000] 1 All ER 373 (at 377-378) per Henry, Laws LJJ and Hidden J.”

The reasons of trial judge in Pollard might be contrasted with the written decision of the Member in this case. That cannot be determinative of the issue as the judgment under review is a written decision which the courts have generally scrutinised more rigorously than ex tempore reasons. However, it does create a sense of perspective. The Member faithfully recorded the evidence in some 170 paragraphs over 100 pages. That is followed by a comprehensive statement of the submissions of the parties and the law in respect of each of the issues in dispute. It is not suggested that there is error in her recounting of the evidence or in her statement of the law. The Member was left to reconcile conflicting, and often inexact, evidence, without the assistance of oral evidence directed at the passages of evidence on which the appellant relied to impugn the respondent’s credit.
If, as the appellant argued, the Member’s reasons as to why she accepted the respondent was a reliable witness were confined to paragraph [280] of her reasons there would be force in its argument that it was “a conclusion” or “a bald finding on credit”.[51] Such a finding would infringe r 78(2)(c) of the Rules and the principes enunciated in the caselaw. But the Member’s consideration of the respondent’s pre-existing condition, the extent to which it was divulged, and its impingement on her credit extended over the previous ten paragraphs. These paragraphs are set out above. The Member found that the scattered entries recording stress or high blood pressure in the clinical record before the respondent commenced employment with the appellant did not detract from her credit. While they included references to workplace stress, there was no acceptable proof of psychological illness before December 2012.
[51] Palmer v Clarke (1989) 19 NSWLR 158, 170; Goodrich, [28].
The Member stated that while the respondent had attended her general practitioner on several occasions for “stress” there was “no record of any contemporaneous formal psychological or psychiatric diagnosis”[52] prior to her employment with the appellant. She also noted that the psychologist who the respondent first saw in January 2013, Ms Ling, did not record any preexisting psychological history at her fist consultation. Clearly, the Member did not accept that the clinical entries recording “stress” established the existence of a “pre-existing” psychiatric condition. These entries did not provide a robust foundation for an argument that the respondent had denied relevant parts of her medical history. Even leaving aside the rigorous constraints on appellate review of findings as to credit, a consideration of the clinical entries relied on by the appellant leaves little room for doubt that this finding was open to the Member.
[52] Reasons, [263].
The appellant submitted that there was no evidentiary basis for the Member’s conclusion at [277] that it would be “reasonable for the [respondent]” to regard her prior workplace stress as “relatively minor workplace issues which she got over quickly and which did not register to her as a mental health issues of any significance.” But it was plainly open to the Member to draw this inference from the content and sporadic nature of the clinical entries, the absence of any psychiatric treatment before 2013, and the fact that respondent continued to work as a pathology collector without substantial time off until 2 May 2014. Indeed, it may have been the obvious inference to draw in these circumstances.
The more contentious aspect of the reasons is the way the Member dealt with the evidence of the respondent’s treatment from 29 December 2012. In contrast with the earlier entries, there can be no doubt that she suffered a psychological condition as a result of an altercation with her tenant in December 2012. Ms Ling, the psychologist to whom she was referred following her dramatic presentation at the St George Hospital, recorded, in a report dated 8 January 2013, that she was suffering from Adjustment Disorder with Mixed Anxiety and Depressed mood “due to issues of intimidation by her tenant”.[53] There are two relevant matters concerning this evidence. First, it occurred well after the respondent commenced employment with the appellant and after she commenced to complain of conflict with Mr Mathews. As it occurred after she commenced employment, caution must be exercised when characterising it as a “pre-existing” condition, the terminology adopted by the appellant in its submissions at the hearing. A number of the medical histories to which the respondent referred in argument recorded denials of “psychiatric history” before the commencement of her difficulties with Mr Mathews.
[53] ARD, p 680.
Dr Protulipac stated in his report of 30 July 2014 that he was “convinced” the respondent had no psychiatric history before the “commencement” of these difficulties “in February 2011”. At his first consultation on 23 March 2014, Dr Stevens also recorded depression present for a number of years “possibly since 2011”. Similarly, Dr Kneebone recorded on 16 June 2014 that there was no history of “any anxiety or depression prior to 3 years ago”. Dr Samuell, who saw the respondent more than 2 years later, on 1 December 2016, merely recorded that there was “no psychiatric difficulty before 2013”. Curiously, Dr Kuljic, a psychiatrist who saw the respondent on 22 November 2021, reported that there were no psychiatric injuries or conditions present at the time of “the MVA”.
A fair reading of these medical histories does not inexorably lead to the conclusion that the respondent has concealed the incident of 29 December 2012 from the doctors. They do not contain a distinct denial of the attendance at the St George Hospital or her subsequent treatment. They do not unequivocally suggest a denial of a “pre-existing condition” as the appellant alleged in its initial submissions at the arbitration hearing. It is, at least, plausible that they record a frank response by the respondent to the questions posed by the doctors.
The case put at the hearing was that the respondent had repeatedly failed to divulge an unrelated psychiatric condition. However, a review of the medical histories suggests that several of the passages on which the appellant relied to establish her unreliability are ambiguous or obscure.
Secondly, the medical report of Ms Ling which contained the history of her presentation at the St George Hospital formed part of the serial reports of the doctor which were served in the respondent’s case. There was no attempt at concealment.
Noting that the respondent had “largely denied any significant prior” psychiatric history, the Member stated at [272] that she had informed Dr Roberts that she had seen Ms Ling, the initial treating psychologist. At [6.13] of Dr Roberts’ report dated 1 May 2018, the following appears:
“She also referred to seeing another psychologist in Campsie, Dr Mei Ling, who was ‘my own psychologist and then I chose Dr Zoran and I feel more comfortable’.”
The report of Dr Roberts contains several references to Ms Ling. It was open to the Member to conclude on the basis of this latter evidence that the respondent had not deliberately concealed relevant evidence in a way which adversely affected her credit.
Plainly, the Member was alive to the credit issue raised by the appellant. She recited in detail the evidence relied on by the appellant. She referred to the evidence of Dr Roberts. She accepted that there was “some inconsistency” in the respondent’s evidence. However, she was satisfied, after considering the whole of the evidence, this inconsistency could be explained “by the questions asked of the [respondent], the passing of time and possible lapses in the [respondent’s] memory”.
Contrary to the appellant’s submission, this finding is not inconsistent with the Member’s statement that the respondent did not inform Dr Roberts of her attendance at the St George Hospital some five years before her initial consultation. The Member concluded that the failure to specifically inform Dr Roberts and other doctors of this event was due to the passage of time and the fallibility of human memory. Conversely, it was not calculated to mislead the interviewer. It did not in the opinion of the Member undermine the respondent’s credit.
It is evident from the above analysis that while the Member’s reasons for her finding on credit may not be pellucidly clear, they satisfy the statutory obligation to provide “brief reasons”. The Member set out the case made by each party. Her reasons are sufficient to make each party aware of her “view” of their case on the credit issue in accordance with r 78(3). The appellant could not argue that it was left in doubt as to the Member’s view on this aspect of the case. It cannot be asserted that she failed to refer to or consider a significant body of evidence or failed to analyse that evidence.[54]
[54] Waterways Authority v Fitzgibbon [2005] HCA 57, [130]–[131] per Hayne J.
The appellant argued that the respondent’s failure to address her preexisting or non-work-related conditions in a supplementary statement precluded the Member from finding that her failure to give an accurate history was due to the passage of time and lapses in her memory. Obviously, the absence of statement evidence on a critical issue is significant. The absence of evidence from a party on a contentious issue may be fatal to the party succeeding on the issue.[55] But the absence of statement evidence on aspects of history does not inhibit a member from drawing appropriate inferences from the entirety of the evidence. It was open to the Member to infer from her reading of Dr Roberts’ reports that the omission of aspects of the respondent’s history was not calculated to mislead and did not adversely affect her credit. That conclusion might be more readily accepted in the case of psychological injury where the medical evidence suggests some diminution of the respondent’s mental functioning.
[55] Ho v Powell [2001] NSWCA 168, [14], per Hodgson JA ( Beazley JA agreeing) and Commercial UnionAssurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389, 418.
As is often the case, a different view of the evidence relevant to credit may have been open. But assuming that her reasons are sufficient, it is immaterial that I conclude that the probabilities are “strongly against” the Member’s findings.[56] The appellant must demonstrate that the Member’s credit finding was “glaringly improbable” or contrary to “incontrovertible” or “governing facts”. Understandably, it has not undertaken this task. The matters referred to by the appellant fall well short of demonstrating such a chasm between the Member’s findings and the evidence.
[56] Devries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472, 479, per Brennan, Gaudron and McHugh JJ.
As the appellant has not proven that there was an insufficiency of reasons for the Member’s credit finding, the appeal must be dismissed.

DECISION

The appeal is dismissed. The Certificate of Determination dated 3 November 2023 is confirmed.

Paul Sweeney
ACTING DEPUTY PRESIDENT

28 November 2024