Success Ventures Pty Ltd v Gacayan - [2022] NSWPICPD 50

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWPICPD 50
Decision Date: 20 December 2022

CaseChat Overview and Summary

The case before the court involved Success Ventures Pty Ltd as the appellant and Gacayan as the respondent. The dispute centred around procedural fairness in the context of a workers' compensation claim. The matter was heard in the New South Wales Court of Appeal, which was tasked with reviewing the decision made by a Member of the Workers Compensation Commission.

The central legal issue before the court was whether the Member of the Workers Compensation Commission had failed to engage with the evidence and submissions presented during the proceedings. Specifically, the court had to determine if the Member had properly considered and responded to the evidence and arguments provided by both parties, particularly focusing on the concept of procedural fairness. Additionally, the court examined how the Member dealt with evidence that was described as 'uncontradicted' and the implications of section 11A of the Workers Compensation Act 1987.

In delivering the judgment, the court concluded that the Member had indeed failed to engage appropriately with the evidence and submissions made. The court found that the Member's approach to the 'uncontradicted' evidence was insufficient and did not adequately address the principles of procedural fairness as required by section 11A of the Workers Compensation Act 1987. This failure led to an unjust outcome for the respondent. The court held that the Member's decision-making process was flawed and that the appeal should be allowed on the grounds of procedural unfairness.

The final orders of the court were to set aside the decision of the Member of the Workers Compensation Commission and to remit the matter for reconsideration by a different Member. This decision underscores the importance of ensuring that all evidence and submissions are properly considered in workers' compensation claims to uphold the principles of procedural fairness.

Orders