Success Ventures Pty Ltd v Gacayan
[2022] NSWPICPD 50
•20 December 2022
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Success Ventures Pty Ltd v Gacayan [2022] NSWPICPD 50 |
APPELLANT: | Success Ventures Pty Ltd |
RESPONDENT: | Cesar Gacayan |
INSURER: | Hotel Employers Mutual Limited |
FILE NUMBER: | A1-W5203/21 |
PRESIDENTIAL MEMBER: | Acting Deputy President Geoffrey Parker SC |
DATE OF APPEAL DECISION: | 20 December 2022 |
ORDERS MADE ON APPEAL: | 1. The Certificate of Determination dated 17 March 2022 is set aside and the matter remitted for re-determination. |
CATCHWORDS: | WORKERS COMPENSATION – procedural fairness – whether Member failed to engage with the evidence and submissions made – dealing with ‘uncontradicted’ evidence – section 11A of the Workers Compensation Act 1987 |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr D Baran, counsel | |
| BBW Lawyers | |
| Respondent: | |
| Mr B McManamey, counsel | |
| Allsworth Lawyers | |
DECISION UNDER APPEAL | |
MEMBER: | Mr C Burge |
DATE OF MEMBER’S DECISION: | 17 March 2022 |
INTRODUCTION AND BACKGROUND
The appeal is from a Certificate of Determination dated 17 March 2022. The hearing occurred on 7 February 2022.
The Member recorded the parties’ agreement as to the issues for determination as follows:
(a) whether Mr Gacayan (the worker/the respondent to the appeal) suffered psychological injury in the course of his employment with Success Ventures Pty Ltd (the appellant), and
(b) if the answer to (a) above is in the affirmative, whether that injury was wholly or predominantly caused by the reasonable actions of the appellant with respect to performance appraisal, discipline and/or promotion.
In the course of the conciliation phase, the parties applied to the Member to cross-examine various witnesses. The appellant wanted to cross-examine the respondent, and the respondent identified three witnesses employed by the appellant that he wanted to cross-examine.
The Member declined to give either party leave to cross-examine, ruling:
“Given the fairly voluminous documentation involved in this matter, I have declined those respective applications. The witnesses have been excused. If anything arises during the course of the day that may change but I’m hopeful and expect that it will not.”[1]
[1] Transcript of proceedings, 7 February 2022 (T), T1.35–39.
That ruling is not the subject of any ground of appeal.
CERTIFICATE OF DETERMINATION
On 17 March 2022 a Certificate of Determination issued as follows:
“(1) The [respondent] suffered a psychological injury in the course of his employment with the [appellant] with a deemed date of injury of 26 November 2018.
(2) The [respondent’s] employment with the [appellant] was the main contributing factor to the above injury.
(3) The injury referred to [at] (1) above was not caused by the reasonable actions of the [appellant] with respect to promotion and/or performance appraisal.
(4) The claim for permanent impairment compensation is remitted to the President for referral to a Medical Assessor to determine the permanent impairment arising from the following:
Date of injury: 26 November 2018 (deemed)
Body system referred: Psychological Injury
Method of assessment: Whole person impairment
(5) The documents to refer to the Medical Assessor to assist with their determination are to include the following:
(a)this Certificate of Determination and Statement of Reasons,
(b)Application to Resolve a Dispute and attachments, and
(c)Reply and attachments.
(6) The [appellant] is to pay the [respondent’s] medical and treatment expenses pursuant to s 60 of the Workers Compensation Act 1987.”
FACTS AND STATEMENT OF REASONS
The respondent applied for and obtained employment with the appellant at the Park Royal Hotel Darling Harbour. He was employed as the Assistant Chief Engineer reporting to the Chief Engineer, Gary Roberts.
He commenced employment on 15 August 2018. He was dismissed from his employment pursuant to a letter dated 10 January 2019.
The respondent’s evidence as to the relevant events is contested. The appellant continues to the challenge the Member’s acceptance of the respondent’s evidence as to the primary causative events.
The respondent alleged:
(a) On 15 August 2018 he engaged a contractor to perform work at the Hotel.
(b) Mr Roberts disapproved. He told the respondent that he was not to call any contractors or suppliers. He did this in a loud screaming voice in the presence of all the engineering teams.
(c) The respondent said he was thereby shamed and treated with disrespect. He was publicly insulted. He said he felt bullied physically and shocked “as no one [had] put [him] in such a position in public.”[2]
(d) Thereafter the respondent alleged Mr Roberts made public insults and humiliating actions “every day” making him feel “unwelcome, harassed, bullied around exerting [him] pressure not to do the work” he was employed to do.
(e) The respondent said Mr Roberts excluded him from work meetings and activities.
(f) He said Mr Roberts passed on his normal activities to less experienced personnel with no experience in engineering management. He became scared to go to work.
[2] Respondent’s statement, 15 June 2021, Application to Resolve a Dispute (ARD), p 44, [20]–[23].
Mr Gacayan discovered irregularities in the procurement and management systems. He spoke to a Ms Wright, the executive of the housekeeping assistants, and spoke to the financial director, Ms Ivy Zhao. She told him to write to head office.
On 26 September 2018, Mr Gacayan wrote to head office with respect to Mr Roberts’ activities as Chief Engineer.
A subsequent audit process revealed procurement irregularities at the hotel.
Mr Roberts resigned and left the appellant’s employment on 16 November 2018, after giving 3 weeks’ notice.
On 12 November 2018, the respondent provided an Expression of Interest for Mr Roberts’ former position as Chief Engineer.
On 19 November 2018, the respondent was interviewed for this position by Megan Knoetze (the Area Director Human Capital and Development Oceania) and Jeroen Meijer (the Acting General Manager).
There are conflicting accounts of this interview:
(a) The respondent alleged that in the interview he was victimised, ambushed and belittled by Ms Knoetze and Mr Meijer who “took revenge for Gary leaving on my raising and whistleblowing”. He said that Ms Knoetze threatened him and in a loud screaming voice said he should not be in Australia and should be deported.[3]
(b) The respondent said he felt threatened, and feared for his safety and wellbeing. He became concerned for his and his family’s future life in Australia. He felt intimidated, humiliated and discriminated against because of his background from the Philippines. At the end of the interview, he almost called an ambulance as he was vomiting and stressed. After the interview the respondent withdrew his application for the Chief Engineer’s position.
(c) On 20 November 2018, Mr Gacayan wrote two letters to Mr Wee Cho Yaw, the Chief Executive Officer of the appellant located in Singapore. The first letter referred to a previous letter to Mr Soon Hup dated 20 September 2018 in which the respondent detailed his allegations against Mr Roberts with respect to procurement improprieties. He repeated the contents of the earlier letter. The second letter detailed the respondent’s bullying claims against Ms Knoetze and Mr Meijer arising out of the interview, and against Mr Roberts who was said to have bullied the respondent “as well”.
(d) For their part, as a result of the interview process, Ms Knoetze and Mr Meijer concluded that there were significant discrepancies and inconsistencies in the respondent’s claimed work history.
[3] Respondent’s statement, 15 June 2021, ARD, p 47, [38]–[40].
Ultimately the respondent’s employment was terminated by letter dated 10 January 2019 on the basis that he had misrepresented his employment with Pearl Corporation, a company in which he and his wife were directors.
In essence, Mr Gacayan’s case was that he suffered a psychological injury due to the conduct of Mr Roberts from the commencement of his employment and the further conduct of Ms Knoetze and Mr Meijer in the interview.
A competing explanation for the respondent’s psychological injury advanced by the appellant was that his diagnosed psychiatric condition was caused by prior motor vehicle accidents in 2012 and on 21 May 2018. The latter accident occurred in Brisbane and the respondent underwent therapy and counselling. The Application to Resolve a Dispute included extensive medical documentation with respect to the respondent’s orthopaedic injuries arising from this motor vehicle accident.
In addition, there was also a report from a psychologist, Mr Steven Morgan dated 2 May 2019.[4] This report addressed inconclusively the stressors and contributing factors implicated in the respondent’s psychological condition as a result of a motor vehicle accident on 21 May 2018 and the alleged workplace bullying in the course of employment with the appellant.
[4] ARD, p 93.
The Member concluded that the 21 May 2018 motor vehicle accident resulted in the respondent having a fear of driving.[5]
[5] Gacayan v Success Ventures Pty Ltd [2022] NSWPIC 109 (reasons), [32].
The Member’s findings with respect to the psychological injury were:
“On the balance, in my opinion the evidence discloses the [respondent] suffered a psychological injury in the course of his employment with the [appellant] due to a number of factors in the workplace, including but not limited to his interactions with Mr Roberts and the internal auditors were the main contributing factor to the onset of that condition. I note no evidence is proffered to contradict the [respondent’s] statement in relation to Mr Roberts yelling at him and treating him poorly once the [respondent] become aware of irregularities in the [appellant’s] procurement processes.
Although there is no issue the [respondent] suffered a psychological condition after the motor vehicle accident in May 2018 in that he was scared to drive, it is apparent he was able to function well in the workplace. There is no suggestion the May 2018 accident led to a condition which could be described as a major depressive episode. The [respondent] drove to Sydney for the job interview with the [appellant], carried out his work duties and interacted with co-workers and senior management and auditors despite being new to his role.
On balance, I find the [respondent’s] employment with the [appellant] was therefore the main contributing factor to the onset of his psychological condition.”[6]
[6] Reasons, [31]–[33].
The Member rejected the appellant’s submission that because the respondent did not report any psychological stressor until 26 November 2018 (that is, after the interview on 19 November 2018), the respondent’s employment should not be regarded as the main contributing factor to the onset of his psychological illness. He said the proposition was incorrect in law.[7] He cited passages from Baker v Southern Metropolitan Cemeteries Trust[8] to the effect that the lack of a complaint to a general practitioner is a factor entitled to be taken into account in considering whether to accept a worker’s assertion that certain events occurred, but is not determinative.
[7] Reasons, [19].
[8] [2015] NSWWCCPD 56, [80]–[84].
The Member quoted the general practitioner’s history of workplace issues as at 26 November 2018 (that is, after the meeting of 19 November 2018).
The Member said of the passages from the general practitioner’s records:
“Although that entry postdates the [respondent’s] interview for the chief engineer role and the matters raised by the [appellant’s] representatives therein, it nevertheless is a relatively contemporaneous record and sets out matters which concerned the [respondent].
That entry is also corroborated by evidence of the [respondent] providing information to internal auditors surrounding perceived irregularities with his boss, the chief engineer Mr Roberts. There is no question Mr Roberts resigned after having irregularities in procurement processes raised with him. That much is confirmed by Ms Knoetze, the [appellant’s] employee in her statement contained in the Reply.”[9]
[9] Reasons, [23]–[24].
The Member quoted the respondent’s statement at paragraphs [20]–[22], stating at [25] of the reasons that it provided “uncontradicted evidence of hostility and intimidation by Mr Roberts since the [respondent] commenced employment.” He concluded:
“I accept the [respondent’s] evidence concerning his interactions with Mr Roberts, and to the extent any corroboration might be required of the [respondent’s] early concerns once he commenced employment regarding Mr Roberts, it is apparent he raised various issues with the internal auditors and senior management. In my opinion, that evidence confirms the [respondent’s] issues with Mr Roberts were plainly playing on his mind as early as October 2018.
Moreover, the [appellant] has not provided a statement from Mr Roberts to contradict the [respondent’s] evidence. Although Mr Roberts has left the [appellant’s] employ, no evidence has been proffered as to attempt to obtain a statement from him to refute the [respondent’s] evidence. To the extent the [respondent] relies on his interactions and issues with Mr Roberts as the cause of his condition, I accept his evidence.”[10]
[10] Reasons, [29]–[30].
The Member accepted the opinion evidence of Dr Oldtree Clark (Independent Medical Examiner for the respondent) and Dr Suleman (the respondent’s general practitioner), and concluded:
“… the evidence in this matter on balance supports a finding that the [respondent’s] employment with the [appellant] was the main contributing factor to the onset of his psychological condition.”[11]
[11] Reasons, [40].
The Member rejected Dr Vickery’s (Independent Medical Examiner for the appellant) attribution of the psychological injury in major part to the motor vehicle accident on 21 May 2018 because:
(a) Dr Vickery failed to take “sufficient account [of the] workplace factors which the [respondent] was subject to from the outset of his employment”,[12] including the respondent’s interaction with the internal auditors and the outcome of their investigation.
(b) The report dated 22 July 2019 contained an inherent contradiction.[13]
[12] Reasons, [36].
[13] Reasons, [38].
On the second issue, namely, the operation of s 11A of the Workers Compensation Act 1987 (the 1987 Act), the Member rejected the appellant’s argument that it was its reasonable actions with respect to promotion and/or performance appraisal that were the whole or predominant cause of the respondent’s injuries.
The Member said:
“Given the multitude of factors which the [respondent] faced in his employment with the [appellant], I am not satisfied on the balance of probabilities that the [appellant] has discharged its onus of proof in establishing its actions with respect to promotion, discipline and/or performance appraisal were the whole or predominant cause of the [respondent’s] injury.
A test pursuant to section 11A is a conjunctive one. That is, the [appellant] must show not only that its actions were reasonable, but that they were the whole or predominant cause of any injury. Having found the [appellant] has not discharged the onus of proof regarding the whole or predominant cause element, I do not consider it necessary to make any findings in relation to the conduct regarding performance appraisal, discipline and/promotion. Certainly, the [respondent’s] interactions with the internal auditors and with Mr Roberts were not part of any formal disciplinary, promotion or performance appraisal process and, quite appropriately, the [appellant] does not contend they were.
Having found the [respondent’s] injury was caused by a number of factors, and not wholly or predominantly those relied upon by the [appellant] in support of its defence under section 11A, I find in favour of the [respondent].”[14]
[14] Reasons, [47]–[49].
ON THE PAPERS
The parties submit the matter may be dealt with on the papers.
Section 52(3) of the Personal Injury Commission Act2020 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.”
Procedural Directions PIC2 and WC3 provide that I may be satisfied that the documents and submissions of the parties provide me with sufficient information so that the appeal can be determined on the papers without holding any formal hearing. I am satisfied that this is an appropriate matter to proceed “on the papers” without holding any conference or formal hearing.
THRESHOLD MATTERS
The monetary threshold pursuant to s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) has been satisfied with regard to the amount claimed by the respondent in the claim for whole person impairment.
The Certificate of Determination issued on 17 March 2022. The appeal was brought within time, namely, within 28 days after the making of that decision.
I am satisfied that the threshold requirements under s 352(3) and (4) have been met.
NATURE OF THE APPEAL PURSUANT TO SECTION 352(5) OF THE 1998 ACT
The appellate jurisdiction under s 352(5) is only engaged when there is an error of fact, law or discretion and is confined to correction of such error when established. There is no jurisdiction to review or engage in a new hearing.[15]
[15] Section 352(5) of the 1998 Act.
GROUNDS OF APPEAL
The appellant seeks to agitate six grounds of appeal, namely:
Ground One – The Member erred in law in concluding that the respondent’s evidence regarding the hostility and intimidation by Mr Roberts should be accepted because it was uncontradicted.
Ground Two – The Member erred in failing to take into account a material and relevant consideration, namely the respondent’s failure to report the bullying of Mr Roberts until after the November 2018 meeting.
Ground Three – The Member erred in failing to find that the respondent’s major depressive disorder was caused by the May 2018 motor vehicle accident and further erred in rejecting the opinion of Dr Vickery on the basis that there was no contemporaneous diagnosis of such a disorder.
Ground Four – The Member committed a jurisdictional error or otherwise engaged in conduct constituting a constructive failure to exercise jurisdiction by failing to assess the respondent’s credibility and further erred in failing to find that the respondent had engaged in deliberate acts of dishonesty.
Ground Five – The Member erred on the test of causation pursuant to s 11A of the 1987 Act and also by failing to properly determine the s 11A defence.
Ground Six – The Member erred in law by failing to take into account and make findings in respect of the evidence adduced by the appellant and alternatively denied the appellant procedural fairness.
Grounds Four and Six are grounds of appeal which, if established, amount to a failure to achieve procedural fairness. In so far as either of those grounds may be established, there will of necessity be a remittal of the matter for rehearing. It is appropriate therefore to deal with those grounds at the outset.
Ground Four
Appellant’s submissions as to Ground Four
The appellant observes that there is no automatic right of cross-examination and does not appeal from the Member’s refusal to grant leave to cross-examine the respondent.
The appellant says that it was not a case where cross-examination would have revealed anything more “as there was incontrovertible evidence upon which the learned Member ought to have acted to have found that the respondent was entirely dishonest with the appellant from the very first time he commenced his employment and should have taken those matters into account in assessing his credibility to determine whether or not it could be accepted that the cause of his psychological injury was multi-factorial. That finding was based it is submitted on a complete acceptance of the respondent’s evidence.”[16]
[16] Appellant’s submissions, [31].
The appellant submits that “[t]he Member ignored entirely the evidence of the two material witnesses called by the appellant”.[17]
[17] Appellant’s submissions, [32].
It was inconceivable that the respondent could have been suffering from a serious mood disorder in circumstances where he applied to be the Chief Engineer of the appellant. Reliance is placed upon the respondent’s letter in support of the application that the respondent was entirely fit and ready to take on the most senior engineering position in the organisation.
The expression of interest of 12 November 2018 with respect to the chief engineering position contained a Curriculum Vitae which was “filled with dishonest representations.”
The two witnesses for the appellant following upon the interview of the respondent for the position “stated the concerns that they had regarding assertions of prior employment and they set out in extensive detail how the representations of prior employment were either false, dishonest or extremely suspicious.”[18]
[18] Appellant’s submissions, [34].
The respondent’s employment was terminated on 10 January 2019. The letter of termination pointed out that the respondent had previously stated that he had employment with Pearl Corporation Pty Limited which he falsely described as a Taiwanese owned strata property management group with three properties and over 330 rooms. However, investigations conducted by the appellant revealed that Pearl Corporation Pty Limited operated a café/restaurant in Queensland and was owned by the respondent and his wife, who were its sole directors.
There was no challenge to the termination of the respondent’s employment and no evidence contradicting the conclusions with respect to Pearl Corporation Pty Limited.
The appellant’s witnesses said that prior to the interview, no complaint was ever made to them about Mr Roberts.
The Member’s assertion that stress was caused by the auditors should not be accepted because the auditors never demonstrated, either by text or otherwise, any criticism or undertook any bullying behaviour towards the respondent.
The appellant submits:
“… the Member was required to weigh up all these factors to determine whether or not he could believe the respondent … The Member did not assess the credibility of the respondent by considering all of the evidence and, with respect, failed to discharge his function constituting a jurisdictional error as he was required to determine the matter according to the evidence but did not do so. The finding of bullying when the respondent had been caught out by reasonable action was glaringly improbable and contrary to compelling inferences to the contrary.”[19]
[19] Appellant’s submissions, [36].
The appellant concludes that the respondent was proven to be dishonest, had lied to the appellant and remained silent as to the truth. The submission made by the appellant is that the respondent’s version of events was glaringly improbable and “one whereby the Commission exercising its jurisdiction would not make findings in his favour without independent evidence. There was none.”[20]
[20] Appellant’s submissions, [37].
Respondent’s submissions as to Ground Four
The respondent’s primary submission is that the appellant’s submission with respect to Ground Four “does not identify any error”.
The respondent submits that the essential complaint is that the Member ignored the evidence of Ms Knoetze and Mr Meijer and that the answer to that submission is that neither witness could give relevant evidence because the respondent did not say he complained to them.
The respondent submits:
“In the circumstances there was no conflict between the respondent and the appellant’s witnesses and the Member was not required to resolve that conflict. The Member had accepted the respondent’s account of his treatment by Mr Roberts because it was corroborated and not contradicted by Mr Roberts.”[21]
[21] Respondent’s submissions, [19].
The appellant’s argument that applying for the position of Chief Engineer was inconsistent with a developing psychological condition is not based on the evidence and is “without merit”. The termination letter of 10 January 2019 “is clearly irrelevant as the injury had fully manifested itself by the time the respondent sought medical attention on 26 November 2018.”[22]
[22] Respondent’s submissions, [21].
Furthermore, there was no refutation of the fact that complaints had been made to Ms Zhau and the respondent had communicated with head office in Singapore. It is also apparent that the respondent made contemporaneous complaints to his wife, Olivia Gacayan.
The respondent submits the appellant’s assertion that the respondent was proven to be dishonest and lied to the appellant was “bold” and is said to have been made without any examination of the evidence which shows that the respondent had been able to substantiate his visa position. Furthermore, there is also a conflict about the content of what was said at the interview. The respondent submits, however, that it was not necessary to reconcile that conflict because of the Member’s finding that the harassment by Mr Roberts had occurred.
The respondent submits that the interview of 19 November 2018 was only relevant to the defence under s 11A and then only in so far as the appellant’s actions were said to be “reasonable”. As the Member determined the s 11A issue on the ground that the appellant had failed to establish that the actions were the “whole or predominant cause” of the injury, it was not necessary for the Member to specifically consider the evidence of the witnesses Ms Knoetze and Mr Meijer.
Appellant’s submissions in reply
The appellant submits that the respondent misstates the basis of Ground Four which is advanced as a source of jurisdictional error. The respondent asserts that he made complaints to other people, yet those persons are not identified. The appellant asserts that those complaints were not of bullying and it was only belatedly that the respondent made complaints to doctors, “well after the respondent’s employment was terminated.”
The appellant submits:
“Contrary to the respondent’s submissions, complaints to Ms [Zhao] and others did not make reference either specifically or inferentially, to the kind of bullying behaviour that was disclosed to the Personal Injury Commission. The allegation of contemporaneous complaints made by the respondent’s wife is indicative of the weakness of the respondent’s case given the multitude of communications that the respondent had with Senior Management when he became a whistle-blower.”[23]
[23] Appellant’s submissions in reply, [20].
The appellant submits the respondent was proven to be a dishonest person who had lied and its submission to this effect was justified on the evidence derived from the HR interview.
Ground Six
Appellant’s submissions as to Ground Six
The appellant submits that two material witnesses gave forthright and direct evidence as to their dealings with the respondent. Consideration of their evidence was vital to the determination of the dispute that was before the Member. The evidence went to the s 11A defence but also to the primary allegations of bullying and harassment. Further, the evidence was also relevant to any argument based on the respondent’s misperception of real events. Simply put, the witnesses’ evidence was such that the respondent lacked credit and should not have succeeded.
The primary submission in support of this ground is:
“The Member had the Reply and attached documents before him but in accepting the respondent’s evidence ignored the statements of two material witnesses called by the appellant and other documentation despite the probative evidence that they both gave in particular regarding the complete absence of even the slightest mention of any bullying behaviour by Mr Roberts, or for that matter, anything else. Had the respondent’s credibility been assessed by reference to the statements of the two witnesses called on behalf of the appellant, then the appellant could not be heard to complaint [sic] but here the appellant has no idea of knowing why it was that the appellant’s evidence of its two material witnesses and the supporting internal documents were completely ignored and the appellant respectfully submits it was denied a fair hearing and procedural fairness.”[24]
[24] Appellant’s submissions, [46].
The appellant concludes its submission by arguing that the Member, in completely ignoring the appellant’s witnesses, deprived the appellant of the possibility of a successful outcome. A supplementary submission is that in so far as the statements were completely ignored, inferentially the conclusion is that they were rejected without reasons.
Respondent’s submissions as to Ground Six
The respondent submits as “explained earlier in these submissions the only relevance of the two witnesses to the issue being determined by the Member was the evidence that the respondent had not complained about Mr Roberts to those two witnesses.”[25]
[25] Respondent’s submissions, [34].
Furthermore, the respondent’s evidence of complaint is corroborated by other uncontradicted evidence and the evidence of his wife. The respondent’s evidence was not contradicted by evidence from Mr Roberts or any other witness.
Corroboration for the respondent’s case can be found in:
(a) the audit(s);
(b) the resignation of Mr Roberts as a consequence of that process;
(c) the only inconsistency was that Ms Knoetze said the irregularities were discovered in the course of the routine annual audit in September whereas other material established that there had been a further audit carried out in October, and
(d) the respondent had been interviewed in the second audit as is seen by the text messages.
The respondent submits:
“The Member has set out clear reasons for accepting the respondent’s version of events with respect to Mr Roberts. As the evidence of the two witnesses was of only marginal relevance to that issue it was not necessary for the Member to evaluate any contradiction especially in the circumstances of this case where there was no contradiction.
This ground, as with the other grounds, is essentially a complaint by the appellant that its evidence should have been preferred. At no stage has there been any assertion that the conclusion reached by the Member was not available to him and was not supported by the evidence that he referred to. The appellant has not identified any error of fact or law in respect of this ground or any other ground.”[26]
[26] Respondent’s submissions, [36]–[37].
Appellant’s Submissions in Reply
In Reply to the respondent’s submissions on Ground 6 the appellant submits that it would be “inconceivable” to regard the evidence of the two material witnesses relied on by the appellant as of only “marginal relevance”. The respondent has not demonstrated that the evidence is “tangential or of little weight”. In addition the Member without reasoning dealt with the evidence of Ms Knoetze’s evidence as being that she detected “irregularities” in the procurement process raised by the respondent. However her evidence also went to serious dishonesty on the part of the respondent.
Consideration Grounds Four and Six
The appellant’s complaint is that the Member failed to engage with and address a major part of its case. At the hearing before the Member, the appellant addressed arguments and submissions based on the evidence of Ms Knoetze and Mr Meijer. The Member did not in his reasons provide any analysis of the evidence or response to the submissions based on that evidence. The consequence was that the appellant submits it was denied procedural fairness and the hearing miscarried.
In Day v SAS Trustee Corporation[27] Meagher JA said:
“… a constructive failure to exercise jurisdiction (or a purported exercise, in the sense that there is an appearance of an exercise of jurisdiction) as alleged by the appellant is not a mere failure to consider evidence or to address an argument or submission, which may be contingent or otherwise insignificant, but a failure to understand and determine a case or claim. The ultimate question is whether a failure to consider and address certain issues or arguments involved a failure to address central or critical elements of the case or claim: compare, in relation to failures to consider evidence, Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99; [2013] FCA 317 at [69], [111]. It will be insufficient for the appellant to show that his ‘three key issues’ were not stated and determined discretely. What he must show is that they raised ‘substantial’ (in the sense of clearly material) arguments or questions which the primary judge in substance failed to address in determining the appellant’s claim to have been incapable, by reason of a chronic adjustment disorder, of exercising the functions of a police officer at the time of his resignation.”
[27] [2021] NSWCA 71, [37].
In Minister for Immigration and Citizenship v SZRKT[28] the Federal Court considered an appeal from a Federal Magistrate in which the issue on the Minister’s appeal was whether the Federal Magistrate erred in finding that the tribunal ignored evidence consisting of a certified copy of the first respondent’s academic record and, if so, whether the tribunal’s decision was affected by jurisdictional error.
[28] [2013] FCA 317 (SZRKT).
In the course of the judgment, Robertson J said this:
“In relation to a decision-maker’s consideration of the evidence, it is well established that no jurisdictional error occurs, if the decision-maker makes a ‘mere’ error of fact when considering or weighing a piece of evidence in the course of deciding an issue of fact or law arising in the matter … Moreover, the Full Court has warned against drawing an inference that either an issue has been overlooked, or that evidence was overlooked, merely because a piece of evidence was not expressly discussed in the course of a decision-maker’s stated reasons, since ‘it is plainly not necessary for the tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons’ … However, an error in the assessment of a material piece of evidence is one thing, and failing to be aware of evidence which is material to the decision, and of which the decision-maker should be aware, is another.
The jurisdictional error of ‘ignoring’, or failing to be aware of, or totally disregarding, relevant evidence has been traced to a general duty implicit in a statutory power of decision, that the decision-maker ‘is required to make his decision on the basis of material available to him at the time the decision is made’.”[29]
[29] SZRKT, [25]–[26].
I acknowledge that the Member was not required to refer to every piece of evidence or every contention advanced by the appellant. Nevertheless, for the reasons that follow, in my view the absence in the reasons of reference to the evidence of the appellant’s witnesses and the submissions based on their evidence indicates that the Member did not engage with and determine the case being advanced by the appellant. It follows that the hearing did not provide the appellant with procedural fairness. The matter must be remitted for re-determination.
The evidence of the respondent concerning his interactions with Mr Roberts was accepted by the Member for the following reasons:
(a) the respondent had raised various issues with the internal auditors and senior management. He said that evidence confirmed the respondent’s issues with Mr Roberts were plainly playing on his mind as early as October 2018;[30]
(b) there was no evidence “proffered to contradict the [respondent’s] statement in relation to Mr Roberts yelling at him and treating him poorly once the [respondent] become aware [sic] of irregularities in the [appellant’s] procurement process”;[31]
(c) the interaction with the internal auditors was exemplified in the text messages which the Member said showed the respondent’s concern over the outcome of their investigation and his concern for the future of his employment,[32] and
(d) the appellant did not provide any evidence of efforts to obtain a statement from Mr Roberts to refute the respondent’s evidence.[33]
[30] Reasons, [29].
[31] Reasons, [31].
[32] Reasons, [37].
[33] Reasons, [30].
It is apparent that the Member accepted the evidence of the respondent which he said was “uncontradicted”. However, he did so without referring to the evidence of Ms Knoetze and Mr Meijer.
Of importance are the following paragraphs from Ms Knoetze’s statement of 30 November 2018:
“Upon reading the allegations against Gary, I found this quite aggressive and did not appear to be within Gary’s personality, however I did not work with him on a daily basis. We also don’t have an environment where people would feel forced to do something against their own will. This is a free environment and there are avenues where someone could go to if the person felt that something was wrong or they felt they were being forced to do something.
My other thought after reading the allegation surrounding Gary was that there were things in there that the [respondent] said that Gary didn’t allow him to do. At first I thought this was unusual but then I thought that the [respondent] has only been here for about 3 months, so it made sense that we would not let him call our suppliers. The work that we were completing was coming to the end and it did not make sense to bring another employee to communicate to those suppliers at such a late stage. This letter was a surprise to me.”[34]
[34] Ms Knoetze’s statement, 3 December 2018, Reply to Application to Resolve a Dispute (Reply), p 13, [75]–[76].
The discussion of the evidence by the Member does not make any detailed reference to the evidence of Ms Knoetze or Mr Meijer. The only reference to this evidence is at [24] of the reasons where the Member notes that Ms Knoetze confirmed that Mr Roberts resigned having regard to irregularities in procurement.
The appellant was entitled to, and did, rely upon the statements of Ms Knoetze and Mr Meijer to show at the very least that:
(a) The respondent was untruthful in his interview as to his Curriculum Vitae and past employment activities.
(b) Ms Knoetze’s evidence, if accepted, meant that at the very least the bullying alleged by the respondent was out of character in her experience with Mr Roberts. This meant the Member was required to assess the truthfulness and reliability of the evidence advanced by the parties.
(c) The conduct of Mr Roberts complained of by the respondent was inconsistent with Ms Knoetze and Mr Meijer’s knowledge and experience of Mr Roberts’ character.
(d) Before the meeting of 19 November 2018, the respondent had not reported “any bullying towards him from Mr Gary Roberts, never.”[35]
(e) It was only after the interview of 19 November 2018 that the claim for psychological injury arising out of the employment manifested itself.
(f) The statements provided evidence as to what occurred in the interview of 19 November 2018. The interview had a significant effect on the respondent, leading to him seek medical treatment and provide the history he did to the general practitioner.[36]
[35] Ms Knoetze’s statement, 3 December 2018, Reply, p 3, [22].
[36] See reasons, [22].
The respondent submits that the evidence of Ms Knoetze and Mr Meijer could be disregarded because Mr Gacayan did not say that he reported the bullying to either of these witnesses. The Member does not say the evidence was not relevant to the complaints made to Mr Roberts.
The point is that the Member did not engage with the evidence. He could, as the respondent submits, have found it of no relevance or of little weight. But he did not even refer to it in circumstances where the appellant made substantial submissions based on the evidence.
The Member was required to engage with the statement evidence of Ms Knoetze and Mr Meijer. It was patent that substantial reliance was placed on this evidence by the appellant. There is nothing in the reasons for the determination indicative of any engagement by the Member with the evidence of these witnesses who were plainly central to the appellant’s case on the issue of injury.
The Member has failed to engage with the evidence and submissions made by the appellant and the appellant has made out the appeal on the basis that it was denied procedural fairness.
Grounds Four and Six of the appeal are established.
Ground One
Appellant’s submissions as to Ground One
The appellant has identified a number of occasions[37] when the Member expressed himself as accepting the respondent’s evidence because it was “uncontradicted”.
[37] Reasons, [25], [29], [32].
The appellant submits that it was not open to the decision-maker to automatically accept evidence on the basis that there was no evidence to the contrary and that there is no principle of law requiring the Court to accept unchallenged or untested evidence at least in the absence of circumstances indicating unreasonableness to the point of perversity.
The appellant’s legal proposition is that “[a]s a matter of law, particularly in circumstances where the respondent’s credibility was under attack, the correct principle to have applied was for the Member to enquire as to whether or not he could be satisfied that certain events took place and, if there is uncontradicted evidence, its acceptance depends on all of the circumstances including its inherent probability and the possibility of calling evidence in reply.”[38]
[38] Appellant’s submissions, [8].
Mr Roberts had resigned and was completely unconnected with the appellant. The appellant and Mr Roberts had not been associated since November 2018.
It was explicable that Mr Roberts would not give evidence or have a statement taken and the fact that he engaged in inappropriate commercial dealings was not an issue as Ms Knoetze makes clear in her statements.
No statement could be provided by Mr Roberts for the obvious reason that Mr Roberts had engaged in conduct that easily could constitute a criminal offence or a series of criminal offences. In the Personal Injury Commission Mr Roberts would have had no possible protection available to him in respect of any statement pursuant to the Evidence Act1995 (NSW) and there is no power in the Personal Injury Commission to issue a certificate as it is not a Chapter 3 Court. Evidence in chief cannot be certified only questions asked in cross-examination.
The appellant submits that the Member’s emphasis that the evidence of the respondent as to bullying was uncontradicted was not correct as the respondent’s evidence was contradicted by Ms Knoetze where she said “the [respondent] did not report any bullying towards him from Mr Gary Roberts, never.”
Respondent’s submissions as to Ground One
The respondent submits that the essence of the appellant’s submission is that the only basis upon which the respondent’s evidence had been accepted was that there was no contradictory statement from Mr Roberts. However, there was evidence in addition to the uncontradicted evidence of the respondent, namely:
(a) the doctor’s clinical notes of 26 November 2018;
(b) the fact that the respondent raised with internal auditors and senior management various issues;
(c) the absence of evidence proffered by the appellant of any attempt to obtain a statement from Mr Roberts;
(d) there was an audit conducted in October after complaints had been made by the respondent;
(e) none of the explanations given by the appellant for the absence of a statement from Mr Roberts were put to the Member at the hearing. “The appellant did not make any submission before the Member to seek to explain the absence of evidence from Mr Roberts”,[39] and
(f) the non-report of complaints about Mr Roberts to Ms Knoetze is to be explained by the fact that the respondent never claimed to have spoken to Ms Knoetze at any time prior to the interview on 19 November 2018. “In any event a failure to complain to Mr Knoetze does not contradict the respondent’s evidence about his interactions with Mr Roberts. The most that can be said is that if he had complained to Ms Knoetze there would have been further corroboration of his evidence.”[40]
[39] Respondent’s submissions, [6].
[40] Respondent’s submissions, [7].
Appellant’s submissions in reply
The appellant submits that the respondent has not provided any evidence to contradict the submission made by the appellant that “The Member erred by arriving at the conclusion that the respondent’s evidence regarding the hostility and intimidation by Mr Roberts should be accepted because it was uncontradicted.”
Dealing with the clinical note of 26 November 2018, the appellant says:
“A close examination of that self-serving hearsay document is not evidence which contradicts the assertions of the two major witnesses who were called by the appellant and makes no reference by name to Mr Roberts. If anything the record was a contemporaneous record, leaving aside the assertion of being bullied, of the dishonest conduct by the appellant, for example, that his work rights turned out to be ‘fake’. However the Member did not then deal with the actual evidence itself of the two witnesses called by the appellant giving their version of events, which was diametrically opposed to that of the respondent, not to mention the fact that it was the appellant’s evidence that there was never a complaint about bullying by Mr Roberts.”[41]
[41] Appellant’s submissions in reply, [4].
The appellant submits that the respondent ignored the fact that despite being allegedly bullied by Mr Roberts, the respondent was prepared to apply for the position that was once enjoyed by Mr Roberts, namely that of Chief Engineer.
The appellant further submits that senior management fully accepted the respondent’s complaints, as evident from the text messages and communications by email between the respondent and senior management/the auditors.
The appellant accepts that it did not make submissions regarding the absence of an explanation for Mr Roberts not providing a statement. However, it submits that there was no submission that a Jones v Dunkel inference should be drawn.
The appellant submits that Ms Knoetze and her colleagues received no complaint from the respondent. “The very first time Senior Management receives a complaint of bullying is after the interview when the respondent’s falsities were revealed.”[42]
[42] Appellant’s submissions in reply, [8].
Consideration Ground One
As far as Ground One of the appeal is concerned, it seems to me as a matter of principle the Member was entitled to accept the uncontradicted evidence of the respondent but, for the reasons provided in relation to Grounds Four and Six above, he was required to also address the evidence of Ms Knoetze and Mr Meijer and provide cogent reasons why he could reach the conclusion he did with respect to the respondent’s evidence notwithstanding the evidence of the appellant’s witnesses.
The absence of any discussion of the evidence of Ms Knoetze and Mr Meijer persuades me that the finding accepting the respondent’s evidence cannot be sustained. The credit of the respondent, both as to truthfulness and reliability, was in issue. The absence of statement evidence from Mr Roberts was not enough to overcome the failure to consider the evidence of the appellant’s witnesses.
Ground One of the appeal is upheld.
Ground Two
Appellant’s submissions as to Ground Two
The appellant submits the respondent did not report work events as a psychological stressor until after the November 2018 meeting. The appellant submits that the Member was in error in disregarding the evidence of Ms Knoetze and Mr Meijer that the respondent had failed to make a single specific claim regarding Mr Roberts. It submits further that there were no contemporaneous reports of psychological stress to the medical referees derived from the circumstances of his employment.
The appellant further submits:
“… the process followed by the Member did not accurately reflect the evidence before him. The appellant’s contention is that he failed to make findings which were supportive of the appellant’s case, namely that any psychological illness suffered by the respondent was only disclosed after the November 2018 meeting and even then its causes were either the motor vehicle accident but most likely was the disciplinary meeting where the dishonesty was found leading to the respondent’s termination of his employment which was closely followed by a workers compensation claim.”[43]
[43] Appellant’s submissions, [19].
Respondent’s submissions as to Ground Two
The respondent submits that, other than to argue that the Member should have reached a different conclusion, the appellant does not point to any error made by the Member.
He submits further that the appellant makes the assertion that applying for the Chief Engineer’s job is inconsistent with developing a psychological injury, but that there is no basis for this argument because there is no medical evidence which supports that opinion.
In any event, there is no reason why the respondent should not seek the Chief Engineer’s position at that stage. Despite his treatment at the hands of Mr Roberts, the respondent was nevertheless able to continue in his substantive role. There was no reason why the respondent would not have sought some advancement, particularly as Mr Roberts had now left the appellant’s employ. There is a difference between applying for a job and being able to do it.
Appellant’s submissions in reply
The appellant submits that implicit in the respondent’s submission is an acceptance that the respondent only complained to senior management about the allegedly corrupt practices of Mr Roberts and nothing else.
The entry of 13 October 2018 in the clinical notes of Ms Naum refers to anxiety and panic attacks in the motor vehicle accident and “triggers” from the respondent’s wife.[44] The probative evidence consisted of the respondent’s self-serving statement to a general practitioner.
[44] ARD, p 315.
In support of Ground Two, the appellant submits:
“The respondent does not grapple with the fact and indeed conducted the case below upon the basis that despite the respondent complaining in his statements to the Commission that Mr Roberts threatened the respondent, made him feel ill, made him vomit, was threatened with being implicated and many other examples, he told no one about those matters, only about the [allegedly] corrupt practices of Mr Roberts which overseas management took seriously as did the auditors.”[45]
[45] Appellant’s submissions in reply, [14].
Consideration Ground Two
I do not accept that the Member was in error in his assessment of the respondent’s failure to report the bullying of Mr Roberts until after the November 2018 meeting.
Assuming that the appellant is correct and the respondent did not report the bullying by Mr Roberts until after the 19 November 2018 interview, the Member’s conclusion in favour of acceptance of the respondent’s evidence is not thereby shown to be erroneous. The delay in making a complaint is a relevant but not a determinative factor in assessing the respondent’s evidence. The Member plainly considered this issue and the appellant’s submissions with respect to it. He resolved the issue in favour of the respondent.[46]
[46] See reasons, [19]–[20], [22]–[23].
The Member’s treatment of the reporting of the conduct was open on the material. Standing on its own no error is demonstrated and Ground Two should be dismissed.
Ground Three
Appellant’s submissions as to Ground Three
The appellant points to the fact that the respondent had a serious motor vehicle accident on 21 May 2018, and that he had expressed a fear of driving after that accident.
Dr Alam, general practitioner, had diagnosed the respondent as suffering anxiety/flashback post-traumatic stress consequent upon an earlier motor vehicle accident in 2012. The appellant refers to the records of Ms Naum dated 13 October 2018 and of Dr Lim, another general practitioner, of 3 October 2018. The appellant submits that Ms Naum’s report clearly demonstrates that he required psychological intervention connected with the motor vehicle accident.
The appellant submits that before the Member there were significant amounts of pre-existing probative evidence, all from treating doctors or other practitioners involved in the respondent’s treatment for his motor vehicle accident. That material pointed directly to the onset of psychological symptomatology.
The diagnosis of the disorder as such as not being contemporaneous did not mean that the respondent did not suffer from a psychological injury arising out of his motor vehicle accident on 21 May 2018.
Respondent’s submissions as to Ground Three
The respondent submits that the appellant has failed to identify any actual error and submits that the appellant in any event ignores the explicit reasoning.
The respondent identifies that reasoning in paragraph [15] of its submissions and it is unnecessary to set the submission out in full except to note the following:
“… The Member had reasoned soundly that whatever the psychological condition was following the motor vehicle accident it did not affect function and seemed limited to an ability to drive. The Member observed, correctly, that none of the treating doctors suggested that the May 2018 motor vehicle accident led to a condition which is now described as major depressive disorder. The most that could be said was an initial observation from Ms Naum that an adjustment disorder was very likely. Considering all the material that was an adjustment disorder which only manifested itself in a fear of driving. It is significant that the appellant has not sought to engage with the Member’s clear reasons for discounting the motor vehicle accident as being causative of the respondent’s major depressive disorder.”[47]
[47] Respondent’s submissions, [15].
Appellant’s submissions in reply
In reply, the appellant submits that the respondent has not addressed his earlier submissions at paragraphs [22]–[25] and [26].
Consideration Ground Three
The appellant’s argument before the Member and on appeal is that the main contributing factor to the psychiatric condition from which the respondent suffered was pre-existing and properly attributable to the motor vehicle accident of May 2018. The principal evidence for this hypothesis was contained in the reports of Dr Vickery.
The Member rejected Dr Vickery’s evidence because:
(a) There was no issue that the respondent suffered a psychological condition after the motor vehicle accident in 2018 in that he was scared to drive but he was able to function well in the workplace.
(b) There was no suggestion the May 2018 accident led to a condition which could be described as a major depressive episode.[48] The respondent accurately records the Member’s reasoning in its submission at paragraph [15] (see [119] above).
(c) The Member at [35] of the reasons said Dr Vickery did not explain what significance he attributed to the psychologist’s notes made in October 2018 referring to the effects of the motor vehicle accident of 21 May 2018.
(d) Dr Vickery did not explain how the factors which grounded a diagnosis of adjustment disorder by the psychologist were relevant to the present diagnosis of depressive disorder.[49]
(e) Dr Vickery’s conclusion “… that Mr Gacayan’s history is not consistent with what had occurred”, was premised on the proposition that there was “no evidence” of harassment and bullying whereas the Member accepted Mr Gacayan’s evidence that he had been bullied and harassed.
[48] Reasons, [32].
[49] See reasons, [36].
It may be added that the passage quoted from Dr Vickery’s report of 22 July 2019 appears to address the question at item (d) on page 6. The question was:
“If you are of the opinion that the worker suffers from a pre-existing psychiatric illness, was employment the main contributing factor to any aggravation, acceleration, exacerbation or deterioration of this disease?”[50]
[50] Reply, p 131.
The question in item (d) is directed to the second limb of the definition of injury in s 4(b)(ii) rather than the first limb in s 4(b)(i).
Accordingly, Dr Vickery’s comment is not relevant to this matter based as it is on the first limb of the definition of injury in s 4(b)(i). Further, the Member was entitled to conclude that Dr Vickery had not taken into sufficient account the workplace factors to which the respondent was subjected to from the outset of his employment.
Given the Member’s acceptance of Mr Gacayan’s evidence of bullying and harassment, the rejection of Dr Vickery’s opinion was inevitable.
In my view, the appellant has not demonstrated error in the Member’s rejection of the appellant’s case based on Dr Vickery’s opinion that the main contributing factor to the respondent’s injury was the motor vehicle accident of 21 May 2018.
Ground Three of the appeal is dismissed.
Ground Five
Appellant’s submissions as to Ground Five
The appellant submits that the Member’s criticism of Dr Vickery, particularly his report of 21 July 2019, as containing an inherent contradiction is erroneous.
The appellant’s interpretation is:
“What the doctor said was that it was significant that in October 2018 he was complaining of psychological symptomatology from his motor vehicle accident on 21 May 2018, but ultimately formed the view that the interview of 19 November 2018 was either wholly or predominantly the cause of ‘the injury’, namely the injury for which the respondent was claiming a remedy pursuant to the Workers Compensation Act. Indeed, contrary to what the Member stated, Dr Vickery did not use the words ‘main contributing factor’.”[51] (emphasis in original)
[51] Appellant’s submissions, [40].
In the second report the appellant submits Dr Vickery formed the opinion that it was the action of the appellant with respect to discipline on 19 November 2018 as well as the physical and psychological injuries arising out of the motor vehicle accident on 21 May 2018 that was the cause of the major depressive disorder. In other words, unconnected to work or excused by s 11A(1), either way it was a matter for the Member.
The appellant’s ultimate submission is:
“… it was open to the Member to either enter an award for the appellant, or in the alternative find, based on not only the medical evidence but the evidence of the appellant’s witnesses, that any psychological injury was caused by reasonable action with respect to discipline/promotion.”[52]
[52] Appellant’s submissions, [43].
Respondent’s submissions as to Ground Five
The respondent submits that the contradiction in Dr Vickery’s report is clear and unequivocal and was correctly identified by the Member. Furthermore, Dr Vickery accepted the statements of Ms Knoetze and Mr Meijer without qualification, whereas the Member placed no reliance on the evidence of these two witnesses.
Appellant’s submission in reply
The appellant submits that there was no contradiction in Dr Vickery’s report “of any material worth”. The appellant submits that the two competing theories were equally open and that either the injury was unconnected to work or in the alternative excused by the conduct pursuant to s 11A. It was an error to find that such a contradiction existed when it plainly did not.
Consideration Ground Five
This aspect of Dr Vickery’s report goes to the determination under s 11A.
It is important to appreciate what the Member said in relation to his determination adverse to the appellant under s 11A at [47] of the reasons, namely:
“Given the multitude of factors which the [respondent] faced in his employment with the [appellant], I am not satisfied on the balance of probabilities that the [appellant] has discharged its onus of proof in establishing its actions with respect to promotion, discipline and/or performance appraisal were the whole or predominant cause of the [respondent’s] injury.”
The Member determined the s 11A defence on the basis that the appellant had not shown that the whole or predominant cause of the injury was reasonable action taken in relation to promotion, discipline and/or performance appraisal. This was because he found that the cause of the respondent’s psychological condition was multifactorial involving events before the interview on 19 November 2018.
Furthermore, the Member rejected Dr Vickery’s opinion as being contradictory. In my view, Dr Vickery’s opinions in the two reports, if not strictly contradictory, were certainly inconsistent.
If the respondent’s major depressive disorder was the result of the motor vehicle accident and other non-employment matters, the condition was manifest and could not have been caused by the interview of 19 November 2018 and the subsequent dismissal.
In rejecting Dr Vickery’s two opinions, the Member preferred the evidence of Dr Oldtree Clark, supported by the evidence of Dr Suleman. That evidence supported a finding that the respondent’s employment with the appellant was the main contributing factor to the onset of the psychological condition.
If the appeal was not otherwise successful, I would not uphold Ground Five. But as the matter has to be re-heard, the Member’s findings with respect to s 11A and Dr Vickery’s evidence should be set aside.
CONCLUSION
In my view the appellant has made out the appeal with respect to Grounds Four and Six. In addition, the appellant has made out the challenge in Ground One. Grounds Two, Three and Five have not been established but the matters adumbrated therein will require further examination on the re-hearing.
DECISION
The Certificate of Determination dated 17 March 2022 is set aside and the matter remitted to be re-determined.
Geoffrey Parker SC
ACTING DEPUTY PRESIDENT
20 December 2022
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