Thompson v Expamet Pty Ltd t/as T & G Sheetmetal Services

[2005] NSWWCCPD 14

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Thompson v Expamet Pty Ltd t/as T & G Sheetmetal Services [2005] NSW WCC PD 14

APPELLANT:  Nathan Thompson

RESPONDENT:  Expamet Pty Ltd t/as T & G Sheetmetal Services

INSURER:Employers Mutual Indemnity Workers Compensation Limited

FILE NUMBER:  WCC13236-2003

DATE OF ARBITRATOR’S DECISION:          9 January 2004

DATE OF APPEAL DECISION:  4 March 2005

SUBJECT MATTER OF DECISION:                No transcript of arbitration; No record of ex tempore reasons; no ‘Arbitrator File’; allegation of bias; Sections 352, 354 and 367 of the Workplace Injury Management and Workers Compensation Act 1998.

PRESIDENTIAL MEMBER:  Dr Gabriel Fleming, Deputy President

HEARING:On the papers.

REPRESENTATION:  Appellant:     Brydens Law Office

Respondent:  Church & Grace, Solicitors and Attorneys

ORDERS MADE ON APPEAL:  The decision of the Arbitrator, dated 9 January 2004 is revoked.

The matter is referred to the Registrar for allocation to another Arbitrator for determination as soon as possible.

Background to the Appeal

1. Mr Thompson claims that he suffered an injury during the course of his employment as a forklift driver/storeman for T & G Sheetmetal Services in 1992.  His employer has denied liability for the claim for workers compensation benefits by way of weekly payments, medical expenses and lump sum compensation for permanent impairment and pain and suffering.

1. Mr Thompson filed an ‘Application to Resolve a Dispute’ in the Workers Compensation Commission on 11 August 2003.  The Insurer, Employers Mutual Indemnity Workers Compensation Limited, filed a Reply on 28 August 2003, on behalf of Mr Thompson’s employer. 

1. The dispute was referred to a Commission Arbitrator and on 9 January 2004 a conciliation and arbitration hearing was held.  The parties were unable to reach a settlement of their dispute and, at the conclusion of the arbitration, the Arbitrator made the following orders:

   “Award in favour of the Respondent [the employer] in respect of the Applicant’s claim for weekly payments of compensation and in respect of the Applicant’s claim for lump sum compensation under section 66 of the Workers Compensation Act 1987.

   The Respondent is not liable for the payment of the Applicant’s claim under s60 of the Workers Compensation Act 1987.

   No order as to costs.”

2. This decision, given orally, was reduced to writing and issued in a ‘Certificate of Determination’ dated 13 January 2004.  Attached to this Certificate was a ‘Statement of Reasons-Ex Tempore Orders’ which repeated the orders and stated “To ensure the parties received a timely determination of their dispute the reasons for the orders set out below were given orally at the arbitration hearing.  A sound recording of the reasons given is available to the parties”.  The Registrar has since advised that no sound recording of the arbitration is available.

1. On 30 January 2004 Mr Thompson sought leave to appeal against the Arbitrator’s decision.  He submits, in summary, that:

   ·The Arbitrator was biased,

   ·The ‘Statement of Reasons’ is inadequate,

   ·The absence of a transcript adversely affects the submissions that can be made on appeal.

2. The Respondent opposes the appeal and submits that the above submissions have no merit.  The Respondent wants the Arbitrator’s decision confirmed.

1. Leave to appeal is granted.

1. I am satisfied that I have sufficient information to proceed ‘on the papers’ (pursuant to section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act), without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

Issues on Appeal

1. The threshold issue to be determined is how to conduct a review of the Arbitrator’s decision where there is no transcript of the arbitration, nor record of the Arbitrator’s reasons.  In this matter the ‘Arbitrator’s File’ is also missing and consequently I cannot be certain that I have before me all of the evidence that was before the Arbitrator.  It is also not readily apparent from the Commission’s file, whether witnesses were called to give oral evidence or were cross-examined on that evidence.  

Can the Arbitrator’s decision be reviewed where there is no transcript of the arbitration or the reasons for decision?

1. The review of an Arbitrator’s decision, where there is no transcript of evidence or written reasons, may present insurmountable difficulties.  Unfortunately there have been a number of appeals filed in the Commission where the Registrar has been unable to provide a transcript of the arbitral proceedings, see:  Pied Piper Pre-School Association (Wallerawang) Incorporated v Woolsey [2004] NSW WCC PD 5; Aluminium Louvres & Ceilings Pty Ltd v Zheng [2004] NSW WCC PD 26; Divine v Coles Supermarkets Australia Pty Ltd [2003] NSW WCC PD 28; Australian Traineeship System (Cargill Meat Processes Pty Limited) v Ramage [2004] NSW WCC PD 31; Wyong Shire Council v Paterson [2004] NSW WCC PD 45; Fraternity Bowling & Recreation Club v Sartor [2004] NSW WCC PD 47; Transfield Pty Limited v Bertinato [2004] NSW WCC PD 57). This is a matter of ongoing concern that has previously been brought to the attention of the Registrar.

1. The facts in Fraternity Bowling & Recreation Club v Sartor [2004] NSW WCC PD 47 were similar to this matter and the relevant principles were thoroughly discussed in that case. I do not repeat the reasoning in full here, however, in summary, the following matters are relevant:

   ·It is the Commission’s policy, set out in the Guideline entitled ‘The Practice of the Conciliation/Arbitration Process in the Workers Compensation Commission’, to record arbitral proceedings.

   ·The task of the Presidential Member is to ‘review’ the Arbitrator’s decision, wherever it is possible to do so, either ‘on the papers’ or after an oral hearing.  It is not the intention of the statutory dispute resolution scheme that the review of an Arbitrator’s decision be a fresh hearing of the whole of the dispute (Barbour v BHP Steel Pty Limited [2004] NSW WCC PD 42).

   ·An Arbitrator’s decision must be based on logically probative evidence and supported by adequate written reasons, which apply the relevant law to the facts of the instant case (294(2) of the 1998 Act; Rule 70 and Rule 73 of the Workers Compensation Commission Rules 2003 (‘the Rules’)

   ·It is not necessary for an Arbitrator to give lengthy reasons for their decision.  Provided that Rule 73 is complied with, the reasons will be adequate, notwithstanding they do not set out the statutory provisions at length, nor specify and examine all relevant judicial authority on the matters decided. 

   ·The standard by which adequacy of reason must be determined is relative to the nature of the decision itself and the decision-maker (see discussion in Mayne Health Group t/as Nepean Private Hospital v Sandford [2002] NSW WCC PD 6). The Commission is not a court and proceedings are conducted with as little formality and technicality as the proper consideration of the matter permits (see section 367 of the 1998 Act, Objectives of Commission).  This approach is equally applicable to the preparation of statements of reasons or the giving of ex tempore reasons.  The Commission encourages the practice of Arbitrators in giving ex tempore reasons, where it is fair and appropriate to do so.  This provides the parties with a timely outcome of their dispute.  As with written reasons, the ex tempore reasons must be capable of adequately conveying to the parties the basis upon which the Arbitrator came to his or her decision. 

   ·Where reasons are given ex tempore, recorded and made available to the parties, Section 294 (2) and Rule 73 will be complied with, subject to the reasons being adequate.  However, where there is no record of the reasons, and therefore nothing to be incorporated, by reference, in the ‘Certificate of Determination’, then the ‘Certificate of Determination’, issued under Section 294(2) of the 1998 Act, does not comply with Rule 73.  There is, in effect, no statement as referred to in Rule 73.  Failure to provide adequate reasons for decision is not only a breach of the Arbitrator’s statutory obligations; it is an error of law (Sydney Water Corporation Ltd v Aqua Clear Technology P/L Supreme Court of NSW, Rolfe J, (P/L 55047/96) 17 December 1996; Dennis Willcox Pty Limited v Federal Commissioner of Taxation (1988) 79 ALR 267).

   ·Where reasons are given ex tempore and there is a failure to make any record of those reasons, the reality is that the parties do not have a record of the reasons, the Commission does not have a record of the reasons, and there is no record of the reasons for the purpose of review by a Presidential Member.  This amounts to a constructive failure to give reasons, as required by section 294 and Rule 73.  It matters not whether this failure was occasioned by human error in the operation of the sound recording equipment, administrative failure or technical failure.  Ultimately, it must be said that the Arbitrator erred in failing to provide reasons for decision.

   ·The right to Presidential review ensures Arbitral decisions are fair, just and made according to law.  Where no reasons for decision are given, the right of appeal to a Presidential Member may be, in effect, undermined.  The ‘supervisory’ function of Presidential review, in the particular circumstances of the case, may be denied; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247.”

1. In this matter Mr Thompson’s appeal relies upon the ground of a denial of procedural fairness based on the contention that the Arbitrator was biased.  The nature of the alleged error compounds the difficulty presented by the lack of a transcript of the arbitration and written reasons for decision.  The result, in this case, is that it is impossible to review the decision on appeal.  I have given consideration as to whether this difficulty could be overcome by asking the Arbitrator to now provide written reasons.  However this would not, necessarily, allow the appellant to address the alleged issues of bias in the conduct of the proceedings.  It is also unreasonable to expect that the Arbitrator would be in a position to produce adequate reasons some fourteen months after the event (Fraternity Bowling & Recreation Clubv Sartor [2004] NSW WCC PD 47; Transfield Pty Limited v Bertinato [2004] NSW WCC PD 57).

1. There can only be one outcome of this appeal, namely a finding that the Arbitrator has erred in not providing adequate reasons and a remittal to a different Arbitrator for the matter to be heard and determined afresh. This is clearly an unhappy and unsatisfactory outcome for all parties, however it is impossible to proceed with the task of Presidential review of the Arbitrator’s decision under section 352 of the 1998 Act, as the matter now stands.

Decision

1. The decision of the Arbitrator, dated 9 January 2004 is revoked.

1. The matter is referred to the Registrar for allocation to another Arbitrator for determination as soon as possible.

Dr Gabriel Fleming

Deputy President  

4 March 2005

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

ASSOCIATE