Tomago Aluminium Company Pty Limited v Ryan
[2025] NSWPICPD 31
•4 April 2025
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Tomago Aluminium Company Pty Limited v Ryan [2025] NSWPICPD 31 |
APPELLANT: | Tomago Aluminium Company Pty Limited |
RESPONDENT: | Samuel James Ryan |
INSURER: | Self-insured |
FILE NUMBER: | A1-W8907/23 |
PRESIDENTIAL MEMBER: | President Judge Phillips |
DATE OF APPEAL DECISION: | 4 April 2025 |
ORDERS MADE ON APPEAL: | 1. I extend the time for the respondent to file a Notice of Opposition to the appeal to 19 July 2024. 2. The Certificate of Determination dated 9 May 2024 is confirmed. |
CATCHWORDS: | WORKERS COMPENSATION – appeal against Member’s decision in relation to incapacity –adequacy of reasons – s 294(2) of the Workplace Injury Management and Workers Compensation Act 1998 – Rule 78 of the Personal Injury Commission Rules 2021 – Fisher v Nonconformist Pty Ltd [2024] NSWCA 32 considered and applied – no error found in relation to the Member’s treatment of bank records, surveillance footage and other material – error made by Member did not affect the result – Paterson v State of New South Wales (NSW Police Force) [2025] NSWPICPD 6 considered and applied – Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 – whether expenditure in bank records reveals a greater functionality or capacity – failure to identify established facts |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr T Grimes, counsel | |
| BBW Lawyers | |
| Respondent: | |
| Mr G Young, counsel | |
| MRM Lawyers | |
DECISION UNDER APPEAL: | Ryan v Tomago Aluminium Company Pty Ltd [2024] NSWPIC 243 |
MEMBER: | The Honourable L Drake |
DATE OF MEMBER’S DECISION: | 9 May 2024 |
INTRODUCTION
In 2019, Mr Samuel James Ryan (respondent) commenced employment with Tomago Aluminium Company Pty Ltd (appellant) as a potline operator. On 18 March 2021, the respondent suffered an electric shock while carrying out his usual work duties and as a result, suffered cardiac complications. He returned to work after a few days, but continued to experience symptoms, culminating in a hospital attendance for suspected heart attack on 20 December 2021. He was referred to and treated by various specialists and was ultimately diagnosed with Functional Neurological Disorder (FND).
The respondent sought weekly benefits and medical expenses from the appellant, however on 24 March 2022, by a notice under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) the appellant disputed the respondent’s claim on a number of bases, including that the injury did not arise out of or during the course of employment with the appellant and the injury did not render the respondent with total or partial incapacity.[1]
[1] Application to Resolve a Dispute (ARD), pp 22–25.
The respondent commenced proceedings in the Personal Injury Commission (Commission). At the hearing before the Member, the issue in dispute was whether the respondent had any past and continuing incapacity for work. The appellant alleged that the respondent was not a credible witness and was malingering and exaggerating his symptoms.
The Member found in favour of the respondent making an order that the appellant pay the respondent benefits pursuant to ss 37 and 60 of the Workers Compensation Act 1987 (the 1987 Act) for various periods up until 14 September 2023. It is from these orders the appellant now appeals.
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 1998 Act have been met.
However, the respondent’s Notice of Opposition was filed 8 days late and as a consequence, the respondent seeks leave to file the Opposition out of time.
The requirement to file a Notice of Opposition to an appeal appears in r 124(1) of the Personal Injury Commission Rules 2021 (Rules). The requirement provides that a Notice of Opposition must be filed within 28 days of being served with an appeal.
Under r 6 of the Rules, I can dispense with the requirement to comply with the Rules if I am satisfied that it is appropriate to do so.
I have read the respondent’s submissions on this application[2] but do not repeat them. I would note that the appellant has not filed a submission in response to the Opposition, meaning that there is no submission in reply to the respondent’s application for leave to file his Opposition late. I will therefore proceed on the basis that the explanation as to why the respondent did not file his Opposition in the required time is not disputed.
[2] Respondent’s submissions, [2.1A–F].
The respondent was successful in obtaining an award in his favour before the Member which is now under serious challenge by the appellant. In my view, it would be neither fair nor in the interests of justice for the appeal to proceed absent the respondent’s arguments in opposition. Observing the history of the matter, the parties, and the respondent in particular, have generally complied with the Commission’s requirements and I consider this non-compliance to be minor in the overall conduct of the matter. I am therefore satisfied that it is appropriate to dispense with the requirement for the respondent to comply with r 124(1) of the Rules.
Pursuant to r 6 of the Rules, I dispense with the requirement for the respondent to comply with r 124(1) of the Rules. I extend the time for the respondent to file a Notice of Opposition to the appeal to 19 July 2024.
THE EVIDENCE
The Member set out the evidence and submissions made by both parties at reasons [6]–[91].[3] The appellant’s case was that the respondent was not a credible witness and had exaggerated his symptoms, functionality and incapacity to both treating and expert doctors.[4]
[3] Ryan v Tomago Aluminium Company Pty Ltd [2024] NSWPIC 24 (reasons).
[4] Transcript of proceedings dated 21 February 2024 (T), T 5.17–30.
The appellant sought leave to cross-examine the respondent which was opposed by the respondent. The Member granted leave for cross-examination on the basis it would be in the interests of justice to do so.
During cross-examination, the appellant referred to, inter alia, the respondent’s statements and complaints he had made to treating and expert doctors, highlighting inconsistencies between his statements made to doctors, Centrelink, and banking and surveillance evidence.
The respondent, in his statement dated 30 August 2023[5] reported the following symptoms:
[5] ARD, pp 8–12.
(a) cognitive fatigue;
(b) physical fatigue;
(c) unsteadiness;
(d) disturbed sleep;
(e) hypervigilance;
(f) burning sensations;
(g) pins and needles;
(h) severe chest pain;
(i) anxiety;
(j) poor memory retention;
(k) numbness;
(l) problem-solving and decision-making difficulties, and
(m) difficulty in regulating emotions.
The respondent stated that his symptoms are present daily, are debilitating, however vary in intensity on any given day.[6]
[6] ARD, p 10, [26].
I would note that the various doctors describe what occurred as an electrocution or electric shock, with the latter description probably being the more accurate. For the purposes of this decision, nothing turns on any difference in this definitional description.
Neurologist, Dr David Williams, provided a medico-legal report dated 11 November 2022 at the request of the appellant.[7] Dr Williams noted the complaints made by the respondent in relation to his ongoing symptoms. At the time of the assessment, the respondent complained of headaches which he experienced regularly triggered by bright lights, loud noises and prominent odours. The respondent complained of his left leg giving way, dizziness, decreased appetite, deterioration in memory and concentration, being easily distractible, lack of motivation, requiring his wife to remind him to do things, low energy and very high-tension levels.
[7] ARD, pp 50–57.
Dr Williams noted the respondent’s symptoms of weakness, sensory disturbance and imbalance were consistent with a diagnosis of FND, secondary to the electrocution. Dr Williams was of the opinion that from a neurological viewpoint, the respondent was fit to undertake his pre-injury duties however “his major disability is in the realm of psychological fitness” which was outside of his expertise.[8]
[8] ARD, p 57.
Dr Williams provided a supplementary report dated 24 July 2023[9] after being provided with photographs of the respondent performing bench presses on 23 November 2021, surveillance reports of the respondent, Dr Pothala’s report dated 23 November 2022 and Awabakal Medical Service notes from 3 October 2022 – 13 July 2023. After reviewing the further evidence Dr Williams stated:
“In my opinion, the non-organic nature of [the respondent’s] presentation has not changed. It remains possible that he has FND, unconsciously motivated. However, the new information discussed above can be readily interpreted as showing at least some conscious motivation aimed at obtaining a perceived benefit.”[10]
[9] Reply to Application to Resolve a Dispute (reply), pp 163–167.
[10] Reply, p 166.
Consultant psychiatrist, Dr Vasantha Pothala, assessed the respondent at the request of the appellant. In his report dated 23 November 2022,[11] Dr Pothala noted that prior to the incident, the respondent was a powerlifter and a competitive lifter. He was physically fit and set Australian records in powerlifting in 2017. Dr Pothala noted the respondent’s complaints that prior to the injury he was calm and easy-going, however since the injury he became anxious and panicky. The respondent complained of being so weak that he was unable to lift and carry his daughter, he suffered debilitating chronic fatigue, his legs gave way, he had chronic headaches/migraines triggered by light, loud noises and certain smells, poor concentration and struggled with multi-tasking. He complained of poor memory, being easily distracted and loss of concentration. The respondent stated he had capacity to assist his children with breakfast, getting them ready and driving them to and from school however often required a nap in the middle of the day.
[11] ARD, pp 58–67.
Dr Pothala was of the opinion the respondent suffered from Somatic Symptom Disorder (SSD) as a reaction to the electric shock injury. Although noting the difficulty regarding causation in psychological conditions, Dr Pothala was ultimately of the view the respondent’s employment with the appellant was the main contributing factor[12] and the respondent did not have any capacity for any type of work as a result of his secondary psychological condition.[13]
[12] ARD, p 64.
[13] ARD, p 65.
Dr Pothala was requested to provide a supplementary report[14] to comment on further evidence including a photograph of the respondent performing bench presses on 23 November 2021, a report of Dr Williams dated 11 November 2022, a report of Dr Edger dated 31 March 2023, and surveillance reports including footage. After viewing the documents, Dr Pothala noted inconsistencies in the symptoms he recorded in his original report, and inconsistencies with respect to activities of daily living. Dr Pothala said the further evidence casted doubt on the diagnosis and recommended the respondent be referred for psychometric testing. Dr Pothala altered his opinion from his earlier report in relation to work capacity and said that on the balance of probabilities, from a psychiatric perspective, the respondent had at least some capacity for employment.[15]
[14] Report dated 20 July 2023, reply, pp 160–162.
[15] Reply, 162.
Neurosurgeon, Dr Michael Edger assessed the respondent on 31 March 2023 at the request of the respondent’s solicitor. Dr Edger recorded the respondent’s complaints since the incident as “dizziness, head spins, poor memory, hypersensitivity to light and sound, chronic fatigue, severe headaches, both legs intermittently giving way (left worse than right), clumsiness and dropping things with both hands, and left leg numbness”.[16] Dr Edger opined that the respondent’s symptoms were consistent with FND which was triggered by the electrocution and stress of the event. Dr Edger assessed the worker as being fit for work 3 days a week, 4 hours per day in a non-manual handling capacity, with lifting restrictions. Dr Edger was of the opinion that the respondent had no capacity for work during the 16 months prior and was unlikely to return to his pre-injury duties with the appellant.[17]
[16] ARD, p 69.
[17] ARD, p 71.
Dr Edger provided a supplementary report dated 20 November 2023[18] after being provided with surveillance reports, statements from the respondent and his wife and the medico-legal reports of Dr Williams and Dr Pothala. Dr Edger was of the opinion that the surveillance footage was consistent with the respondent’s complaints and maintained his view that the respondent was suffering FND as a direct result of the electrocution.
[18] ARD, p 73.
The surveillance footage of the respondent was carried out between 24 April 2023 – 26 June 2023.[19] It is important to remark that the footage was obtained after Dr Edger’s report noting the respondent’s improved condition and having some capacity for work. A summary of the surveillance is provided as follows:
(a) 24 April 2023: The respondent’s wife was observed driving the respondent and their children to Woolworths supermarket. The respondent’s wife then left the scene. Between 9:52am and 10:56am the respondent was seen grocery shopping with his children. At one point the respondent was observed to be carrying his daughter. The respondent’s wife returned and the children were observed to return to the vehicle on their own. At 11:20am the investigator returned to the respondent’s property where it was observed the groceries had already been unloaded and the respondent was seen to be stretching his back. The respondent’s wife left, however the respondent and the children remained at the residence. Gym equipment was observed to be in the respondent’s garage.
(b) 1 May 2023: At 8:10am the respondent was seen affixing two baby seats in the back of a car. He was observed to be bent over, stretching his arms and moved normally with no signs of stress or discomfort. He was seen to pick up one of his toddlers and place them in the child’s seat. The respondent’s wife then drove the car with the children away. The respondent was seen getting in another vehicle and driving it to a Holden Service & Parts dealership where he left the vehicle and his wife picked him up from that location. The investigator lost sight of the respondent however located him at 9:21am shopping at Kmart, pushing a trolley and about to pay for purchases. At 9:27am the respondent, his wife and two small children were seen exiting the shopping centre with the respondent pushing the trolley towards his vehicle. The investigator then lost sight of the respondent.
(c) 23 May 2023: The respondent was seen leaving his home at approximately 8:32am and parked near a primary and preschool. The respondent did not leave his vehicle. Approximately five minutes later the respondent was seen driving with a teenage boy sitting in the backseat. The investigator lost sight of the respondent however upon returning to the respondent’s home saw the vehicle parked in the driveway. Surveillance was terminated at 11:35am due to no further activity.
(d) 29 May 2023: No sight of the respondent. The respondent’s vehicle remained parked in the respondent’s driveway during the period of surveillance.
(e) 13 June 2023: At 8:20am the respondent was seen driving with his children in the car. The investigator lost sight of the respondent. At about 9:22am the respondent was seen returning to his home and parking his vehicle in the driveway. The respondent was not subsequently seen leaving his home and surveillance was terminated at 12:30pm.
(f) 24 June 2023: At 9:28am the respondent was seen leaving his residence in his vehicle. The investigator followed the respondent until 9:53am before losing sight of the respondent in the Hunter Valley Region. Surveillance ceased at 11:40am.
(g) 26 June 2023: No sighting of the respondent. His vehicle was parked at his residence. Surveillance concluded at 12:20pm.
[19] Reply, pp 18–22; 83–114.
Cross-examination of the respondent
During cross-examination, the appellant questioned the respondent as to his capacity and functionality, specifically referencing the banking records and surveillance evidence. The appellant meticulously questioned the respondent on several purchases made at local gyms, physiotherapists, health food and body supplement stores which the appellant submitted such spending was inconsistent with the respondent’s purported incapacity.[20]
[20] Application to Admit Late Documents (AALD) dated 21 February 2024.
The Member remarked that the respondent candidly answered each question and explained that most of the purchases were for his four sporty children. The respondent also stated that both he and his wife purchased health drinks and protein powders to maintain a healthy lifestyle.[21]
[21] Reasons, [19].
The appellant questioned the respondent in relation to his gym activity since the injury. The respondent stated that he had not been to the gym since having his ‘heart-attack’ episode in December 2021.[22] The respondent stated that following the incident on 18 March 2021 but prior to December 2021, he would attend the work gym in his break and would not be able to do much more than ride a stationary bike for 15 minutes. He stated that on a ‘good day’ he might have been able to do some weights, shoulder presses with a 10kg dumbbell, stretch or walk on a treadmill.[23] The respondent admitted that on 23 November 2021 he performed bench presses involving 150kg weights with five repetitions, however explained this was the first time he attempted to bench press since the incident and his body deteriorated over the following four days suffering fatigue, headaches, dizziness and chronic pain.[24] The respondent admitted to returning to the gym again on 26 November 2021 however stated the intensity was far less and that moving was the best thing for recovery. The respondent stated that subsequent gym visits consisted of using the stationary bike, foam rollers and yoga mats.[25]
[22] T 9.19–22.
[23] T 32.10–34.34.
[24] T 36.6–39.2.
[25] T 39.17–34.
The appellant submitted the respondent’s evidence as to chronic symptoms for the four days following 23 November 2021 was inconsistent with the fact that the respondent was able to continue to work, he again attended the work gym on 26 November 2021 and the bank records showed the respondent attending several shops during that period.
The Member noted the evidence indicates the respondent attended the appellant’s gym on 19 occasions between 3 June 2021 to December 2021.[26] The respondent submitted that the weights at the gym on 23 November 2021 must be placed in context. Prior to the accident he qualified for Australia’s Strongest Man competitions where he would lift far greater weights and he had not returned to the gym since December 2021. The respondent submitted there was no evidence to support that he had returned to the gym or performed body building since November 2021.
[26] Reasons, [23].
In response to the surveillance footage, the respondent submitted that only 20 minutes of footage was obtained during the surveillance. The surveillance commenced on 24 April 2023 and the appellant had failed to refer to Dr Edger’s report dated 31 March 2023 where the doctor had acknowledged an improvement in the respondent’s symptoms and certified him fit for work 12 hours per week. The respondent submitted the surveillance should be considered in the context of that improvement and even after Drs Williams and Pothala viewed the surveillance footage, they did not alter their opinions in relation to diagnosis, albeit raised questions of possible malingering.[27]
[27] Reasons, [20].
The respondent submitted Dr Williams appeared to be unaware that the purported inconsistent activities occurred either before or after the respondent’s symptoms were at their worst, which was in contrast to the opinion of Dr Edger, who, in his supplementary report dated 20 November 2023 found the surveillance to be inconclusive. The respondent noted Dr Edger maintained his support for ongoing partial incapacity.[28]
[28] Reasons, [20]–[21].
The appellant questioned the respondent in relation to a Centrelink carer’s form (carer’s form) that was completed by both the respondent and his general practitioner, Dr Gabriella Penna on 13 September 2022.[29] The carer’s form recorded a physical and psychiatric disability that commenced on 20 December 2021. The form recorded “Wife had to stop working to care for [the respondent]. Needs assistance with anything that requires standing. Also needs support with finances, appointments & organisation.” The form recorded that depending on the day, the respondent may need help with grooming and navigating stairs. The respondent declared he was independent with toilet use, feeding, transferring from a bed to a chair, mobility and dressing however would sometimes need assistance from his wife in relation to showering.
[29] ARD, pp 140–147.
During cross-examination, the respondent conceded that his wife did not stop working on 13 September 2022.[30]
[30] T 41.5–21.
The respondent and his GP completed a further Centrelink carer’s form dated 9 October 2022[31] which recorded “[the respondent] struggles to get through the day both physically and mentally. Needing constant supervision and prompting.” The respondent declared that he was independent with grooming, toilet use and feeding however needed minor help with bed to chair transfer, required one person to assist when walking and needed assistance with dressing, bathing and negotiating stairs.
[31] ARD, p 156.
The appellant submitted that both carer’s forms were inconsistent with the evidence, particularly the expenditure noted in the respondent’s bank accounts and the surveillance footage.
In response the respondent argued there was no medical evidence to support the appellant’s submissions. Additionally, the respondent had explained under cross-examination that he goes to the shops to assist his young family and his symptoms varied daily.
The appellant questioned the respondent on the issue of driving. Consultant & non-invasive cardiologist, Dr Cooke who was treating the respondent, recorded in her report dated 14 April 2022 that the respondent “is now reporting a fear of driving his car due to progressive leg fatigue”.[32] The respondent addressed the driving issue in his supplementary statement dated 23 August 2023[33] where he said “I have always had the ability to drive, however it is difficult.” Under cross-examination the respondent said that he found it difficult to drive long distances however his ability to drive on any given day would be dependent upon his fatigue levels. The respondent stated his young daughters attend physical therapy in Newcastle and his wife would ordinarily drive to those appointments. However, as she had recently suffered an injury the respondent would drive, which was dependant on how he was feeling.[34]
[32] Reply, p 149.
[33] ARD, p 4.
[34] T 17.1–34.
The appellant submitted the respondent’s wife, Mrs Ryan’s statement dated 25 September 2023 was inconsistent with the respondent’s evidence under cross-examination. Mrs Ryan had stated that she returned to full-time work in order to maintain their mortgage,[35] however, under cross-examination, the respondent stated his wife had only worked 2-3 days per week during that period.[36] The appellant also submitted there was no evidence of mortgage payments either before or after the incident in the respondent’s banking records. The appellant submitted Mrs Ryan’s statement in relation to returning to full time work was inconsistent with receiving a carer’s pension in respect of the respondent.[37]
[35] ARD, pp 14–15.
[36] T 12.13–15.
[37] Appellant’s submissions to the Member dated 6 March 2024, [35].
The respondent submitted that if Mrs Ryan worked full-time from March 2022 to late 2022/early 2023 there was no inconsistency and Mrs Ryan’s working hours in 2023 were not relevant to her credit.
THE MEMBER’S REASONS
The Member recorded the salient aspects of the evidence and submissions, before reaching the dispositive section of the decision commencing at reasons [92]. This section is not long, and I set out the Member’s reasoning below.
“92. Whilst the bank records on which the [appellant] cross-examined raised doubts regarding the [respondent’s] expressed capacity I did not find them to be sufficiently persuasive to cause me to reject the [respondent’s] evidence as to capacity prior to 31 March 2023. The expenditure could have had many and varied credible explanations.
93. I have considered the surveillance evidence and investigators report. I have considered the medical evidence in conjunction with that material, in particular the medical opinions provided after consideration of the surveillance evidence. The medical practitioners acknowledge inconsistency between the surveillance material and the history provided by the [respondent].
94. When considering the surveillance evidence I took on board the [respondent’s] counsel’s submission that the surveillance took place post 31 March 2023 on which date Dr [Edger] had noted that the [respondent’s] condition had improved.
95. I am persuaded that the [respondent] still suffered from functional neurological disorder when he consulted Dr [Edger]. On that date Dr [Edger] considered that he had improved sufficiently to perform 12 hours work over three four hour days.
96. Having considered the surveillance evidence I reject Dr [Edger’s] opinion as to the [respondent’s] capacity for work as at 31 March 2023. I do not accept the [respondent’s] presentation of his symptoms. I am persuaded that the [respondent] engaged in significant exaggeration of his symptoms when consulting Dr [Edger] and at large for the purpose of maximising his entitlements.
97. I consider the [respondent’s] presentation of symptoms in the second Centrelink form dated 8 October 2002 and his spouse’s description of his symptomatology in her carers application to both represent gross exaggerations of the [respondent’s] situation, even taking into account fluctuations in symptomology.
98. I am not persuaded that the [respondent’s] capacity for work varies on a good day/bad day basis to the extent referred to in his evidence.
99. I am satisfied that the respondent had improved well beyond the capacity for work assessed by Dr [Edger]. I accept that he had a residual incapacity, but his capacity for work was much greater than that assessed by Dr [Edger].
100. When considering the [respondent’s] capacity for work I have considered real, not fanciful, employment.[[38]] I have applied s 32A. I have taken into account the surveillance evidence tendered before the Commission; the medical reports provided after consideration of that evidence; the [respondent’s] age, education, skills and work experience and my assessment of the [respondent’s] capacity for work arising from my consideration of his evidence.
101. I am satisfied and find that the [respondent] could perform work in retail on a full-time basis in outlets such as Bunnings. The minimum rate for such work is $27 per hour on a permanent full-time basis of 38 hours per week, producing a gross weekly income of $1,026.
102. The [respondent’s] PIAWE are agreed at $2,230.16 per week, 80% of which sum is $1,784.13.
103. The [respondent] has already received 53 weeks of compensation.”
[38] Citing Wollongong Nursing Home Pty Ltd v Dewar [2014] NSWWCCPD 55.
The Certificate of Determination issued on 9 May 2024 records:
“The Commission determines:
1. On 18 March 2021 the [respondent] was electrocuted in the course of his employment with the [appellant].
2. As a consequence of his electrocution the [respondent] suffered subsequent cardiac complications and functional neurological disorder.
3. The [respondent’s] pre-injury average weekly earnings were $2,230.16 per week.
4. The [respondent] has had a capacity to undertake work from 31 March 2023 for work in retail sales for 38 hours per week at $27 per hour earning $1,026 gross per week.
The Commission orders:
5. The [appellant] is to pay compensation to the [respondent] pursuant to s 37 as follows:
a) $1,784.13 per week from 24 March 2022 to 30 March 2023, and
b) $758.13 from 31 March 2023 to 14 September 2023.
6. The [appellant] is to pay the [respondent’s] reasonably necessary medical expenses pursuant to s 60.”
GROUNDS OF APPEAL
Three grounds of appeal are advanced by the appellant. They are:
GROUND A – The Member’s decision contains an error of fact that was wrong.
GROUND B – The Member committed an error of law in failing to provide adequate reasons for her findings.
GROUND C – The Member committed an error of law by failing to provide the appellant with procedural fairness by not dealing with submissions made on its behalf.
LEGISLATION
Section 294(2) of the 1998 Act provide that “[a] brief statement is to be attached to the certificate setting out the Commission’s reasons for the determination.”
Rule 78 of the Rules sets out the following requirements:
“…
(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
As to Ground A
The appellant in this ground challenges the Member’s findings with respect to the question of incapacity. The appellant states that the Member had found that the respondent was totally incapacitated for work up to 30 March 2023 and partially incapacitated for work thereafter, and for the following reasons it is said that these findings were wrong. The appellant submits:
“11. The Appellant notes that the Member found total incapacity up to 30 March 2023 and partial capacity from 31 March 2023 as outlined in paragraph 7 above upon which this ground of appeal is based.
12. The Appellant submits that the Member’s finding that the Respondent Worker was totally incapacitated prior to 30 March 2023 or has incapacity at all afterwards is wrong as the Member made the following findings in respect of the [respondent’s] credit and presentation:
a. Paragraph 96: ‘… I do not accept the [respondent’s] presentation of his symptoms. I am persuaded that the [respondent] engaged in significant exaggeration of his symptoms when consulting Dr [Edger] and at large for the purpose of maximizing his entitlements.’ [appellant’s emphasis]
b. Paragraph 97: ‘I consider the [respondent’s] presentation of symptoms in the second Centrelink form dated 8 October 2022 and his spouse’s description of his symptomatology in her carers application to both represent gross exaggerations of the [respondent’s] situation, even taking into account fluctuations in symptomology.’ [appellant’s emphasis]
c. Paragraph 98: ‘I am not persuaded that the [respondent’s] capacity for work varies on a good day/bad day basis to the extent referred to in his evidence.’ [appellant’s emphasis]
13. The Appellant further submits that the findings of total incapacity prior to 30 March 2023 is wrong in light of the functionality in the bank records and concessions in cross examination. The Appellant relies on the submissions below in respect of the Member failing to provide reasons or dealing with the Appellant’s submissions as to the functionality shown in the bank records and concessions in cross examination.”
In terms of the submissions made to the Member below, which are relied upon in this appeal ground, they appear in the appellant’s written submissions in reply dated 6 March 2024 which were before the Member. These submissions are 40 paragraphs in length and impugn the respondent’s evidence about his capacity over a number of topics. The evidence of the respondent’s wife is also subject to criticism. This submission concludes with a statement that the respondent was not a witness of truth and did not suffer from any incapacity for the reasons expressed.
Finally, the appellant submits that the Member’s finding at reasons [61] that the respondent had no opportunity to explain the payment to City of Newcastle was wrong. The appellant submits that the respondent could have answered this question while he was being re-examined or in his submission and failed to do so.
The respondent submits that notwithstanding the matters raised in cross-examination, this has not served to alter the medical evidence of work-related incapacity. The respondent argues that there was no medical evidence which challenged his doctors’ views on capacity until Dr Edger’s report of 31 March 2023. The respondent submitted:
“5. The appellant attempted to undermine the strong medical evidence of work-related incapacity by raising possibilities and suggestions through cross-examination without sufficient support from their own doctors. At best, the appellant’s doctors raise questions or doubts but did not change their diagnosis of work-related FND with some unspecified ongoing incapacity.
6. Without medical evidence to support the appellant’s hypothesis that the respondent worker completely recovered from FND, the Member did not err in preferring the medical evidence in support of total incapacity to 30 March 2023 and partial incapacity thereafter.
7. For example, payment to the City of Newcastle was not proof of activity inconsistent with the respondent worker’s incapacity. The respondent worker did not agree with the appellant’s suggestion under cross-examination that he drove to Newcastle to make the payment contrary to his alleged driving restrictions. The respondent worker could not recall how he made the payment. It was possible the payment was made online.
8. In any event, there was no medical evidence that a return drive to Newcastle on one occasion was proof of no incapacity to work.” (emphasis in original)
The appellant submitted no reply submissions.
Consideration
The appellant points to the findings made by the Member at reasons [96]–[98] (set out above) to argue that the ultimate findings of incapacity were wrong. Essentially, the appellant argues that what appears at reasons [96]–[98] is inconsistent with the decision the Member otherwise reached on the question of incapacity.
The 31 March 2023 date is the date that Dr Michael Edger assessed the respondent, concluding that he could perform “4-hour shifts, 3 days per week, in a non-manual handling capacity”.[39] In Dr Edger’s opinion, the respondent’s capacity was 4-hour shifts over 3 days with various limitations on what he could do. This is the date used by the Member as being when the respondent was no longer totally incapacitated for work as Dr Edger had noted improvement. I would also note the Member’s unchallenged finding at reasons [95] that as at the date that Dr Edger saw the respondent, he was still suffering from “functional neurological disorder”.
[39] ARD, p 71.
I would remark that the surveillance material was obtained after Dr Edger’s examination on 31 March 2023.
As is evident, the appellant disputes the Member’s pre and post 31 March 2023 findings of incapacity. I will deal with these periods separately as different aspects of the evidence considered by the Member apply depending upon the period.
In terms of the pre-31 March 2023 period, a difficulty arises with the appellant’s contentions in that they fail to deal with the medical opinions. It was the medical opinion of Dr Edger of 31 March 2023 that clearly weighed heavily in the Member’s decision.[40] The decision should be read as a whole.[41]
[40] See reasons, [94]–[95].
[41] Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 (Beale).
But in terms of this pre-31 March 2023 period, the contentions relate to the bank records and the 9 October 2022 Centrelink application as well as concessions given by the respondent in cross-examination. With respect to the bank records the Member was simply not persuaded.[42] On this aspect the appellant criticises the Member’s reasons without saying why the reasons were insufficient. Patently the Member was of the view that there was exaggeration in the Centrelink document,[43] but reading the Member’s decision as a whole, the 31 March 2023 date was taken as being determinative as that was the date the expert medical opinion said that the respondent had capacity for work. This is a decision within the Member’s decision-making discretion. Error in terms of how the Member dealt with the bank records and Centrelink document has not been established.
[42] See reasons, [92].
[43] Reasons, [97].
Turning to the concessions given in cross-examination by the respondent, the appellant has not identified the particular concessions relied on in this aspect of the ground, nor has the appellant submitted why the Member was wrong in terms of how they were dealt with. This aspect of the ground has not been formulated with sufficient precision and as a consequence, cannot be established.[44]
[44] Kowalski v Repatriation Commission [2011] FCAFC 43, [21].
I now deal with the Member’s post-31 March 2023 finding of partial incapacity. The appellant points to reasons [96] and says this reasoning is wrong. Reasons [96], which I have set out in full above, relates to the Member’s findings about the surveillance footage. Essentially the appellant argues that the Member ought to have made a finding that from 31 March 2023, the respondent was not suffering from any incapacity.
Intervention on appeal requires the identification of error.[45] I do not accept that the Member’s reasoning that the respondent had greater capacity than Dr Edger has assessed on 31 March 2023 is wrong or inconsistent. As I have said above, the surveillance footage post-dated the doctor’s appointment. The doctor said that the respondent had capacity for work that was consistent with what was shown on the surveillance footage, which was brief. The question for the Member to consider on the question of capacity was one of degree.
[45] Section 352(5) of the 1998 Act, Raulston v Toll Pty Ltd [2011] NSWWCCPD 25, [17]–[31].
The Member’s consideration of the respondent’s stated capacity for work and the assessment of other material, namely the medical opinions, the surveillance footage, the respondent’s evidence and the Centrelink application, is the exercise by the Member of an evaluative judgment. In Australian Air Express Pty Ltd v Langford[46] McColl JA (Ipp and Tobias JJA agreeing) said the following:
“The first [preliminary observation] concerns the approach an appellate court should take to reviewing an exercise whose resolution is ‘one of ‘fact and degree’ in respect of which views might legitimately differ’: Roy Morgan Research Limited v Commissioner of State Revenue (1997) 37 ATR 528 at 533. In such a case it is not enough that an appellate court might have come to a different conclusion - before an appellate court will intervene the appellant must show error on the part of the primary judge: JA & BM Bowden & Sons Pty Limited v Chief Commissioner of State Revenue (2001) NSWCA 125; (2001) 105 IR 66 at 68 [14] per Ipp JA.”[47]
[46] [2005] NSWCA 96 (Langford)
[47] Langford, [15].
The appellant has not shown how the Member was wrong in making her finding with respect to partial incapacity after 31 March 2023.
This leaves two final issues that the appellant complains about in this ground.
The first is the Member’s remark about the payment to Newcastle City Council.[48] The appellant submits that this statement is wrong, and that the respondent did have an opportunity to respond to this discrete issue. I have recently dealt with this type of issue in Paterson v State of New South Wales (NSW Police Force).[49] I accept that the respondent did have an opportunity to deal with this issue as the matter had been raised in the material,[50] and as a consequence I accept that the Member was in error in making the statement at reasons [61]. The respondent says that the issue was dealt with but has not identified where. I cannot find reference to this issue in the transcript of the cross-examination. However, it is not said by the appellant how this error affected the result.[51] The appellant asserted that the payment revealed that the respondent had the capacity to drive to Newcastle. The Member found that it was not put to the respondent in cross-examination that he drove an hour from his home to Newcastle.[52] Given this remark, it is difficult to see the use of the City of Newcastle entry in the overall deciding of this dispute. Even accepting that reasons [61] was in error, the appellant has not shown how this error affected the result. This assertion has not been made out.
[48] Reasons, [61].
[49] [2025] NSWPICPD 6, [106].
[50] AALD 22 February 2024, p 65.
[51] See Walshe v Prest [2005] NSWCA 333, [27].
[52] Reasons, [60].
The second issue relates to the Member’s finding that she did not accept that the respondent’s capacity for work varied on a good/bad day basis to the extent referred to in his evidence.[53] This is a submission that the Member was wrong in her assessment of the respondent’s capacity for work, seemingly not limited to either one or the other time period, or that this finding is somehow inconsistent with the ultimate findings about capacity in both periods. I have dealt with a similar argument above by reference to Langford. The same considerations apply to this assertion. The Member was quite at liberty to undertake an evaluation of this evidence, which led to finding that the respondent had greater capacity for work after 31 March 2023. Before that date, the Member’s decision was really based upon the expert medical opinion of Dr Edger, about which no issue has been taken. The appellant has not established how this was an error.
[53] Reasons, [98].
None of the constituent aspects of Ground A have been made out. This ground is in reality an attempt to cavil with a number of factual findings without the identification of error.
Gound A is dismissed.
As to Ground B
Ground B submits that the Member failed to give adequate reasons.
In the submission, the appellant has termed paragraphs [10]–[91] of the reasons as the “first section”, and paragraphs [92]–[103] as the “second section.” After referring to r 78 of the Rules and a number of authorities, the appellant submits as follows:
“25. Apart from perhaps paragraphs 38, 39, 52 and 53 of the Member’s statement of reasons (which the Appellant submits are ambiguous and lack reasons for the said determinations), the Appellant submits that the Member ‘simply sets out the evidence given’ in the ‘first section’.
26. If the paragraphs 38, 39, 52 and 53 of the Member’s statement of reasons are said to be adequate reasons dealing with the Appellant’s submissions, the Appellant submits they are in direct contrast with the Member’s findings of gross exaggeration etc. as outlined in paragraph 12 above.
27. The Appellant submits that the Member has not stated which parties’ evidence or witnesses are preferred in the ‘first section’ in respect of any of the sub headings.
28. The Appellant submits that the Member has merely summarised the evidence in the ‘first section’.
29. The Appellant submits that the Member has not indicated which evidence is accepted or rejected in the ‘first section’.
30. The Appellant submits that the Member has not addressed the inconsistencies in the evidence and has not properly analysed the conflicting evidence in the ‘first section’.
31. The Appellant submits that the Member has not provided adequate reasons in the ‘second section’ to cure the lack of reasons in the ‘first section’.
32. The Appellant notes that Member identified the following ‘matters in dispute’ at paragraph 3 of the statement of reasons:
a. ‘The issue in dispute is whether the [respondent] has any continuing incapacity for work. The [appellant] alleges that the [respondent] is not a witness of credit and is malingering and exaggerating his symptoms.’
33. The Appellant submits the Member has not determined the issues of the [respondent] not being a witness of credit and has provided no reasons as to this issue.
34. The Appellant submits the Member has not determined the issues of the [respondent] malingering and has provided no reasons as to this issue.
35. The Appellant refers to the paragraphs 10 to 13 above and submits the Member has not provided adequate reasons for the finding of total incapacity prior to 30 March 2023.”
In reply the respondent submits the following:
“11. With respect, the Member engaged with the appellant’s submissions in detail and provided adequate reasons:
(a) From paragraphs 10 to 21 of the Statement of Reasons, the Member considered in detail the appellant’s cross-examination on the respondent worker’s functionality based on the bank records.
At paragraph 19, the Member found the respondent worker ‘candidly answered each question explaining that most of the purchases were for his 4 active and sporty children. Otherwise, he and his wife continue to buy health drinks and protein powders to maintain a healthy lifestyle’.
In other words, the Member was satisfied the respondent worker adequately answered the suggestions put to him under cross-examination that any purchase from a gym or health food store was not for gym or bodybuilding activity.
Accepting the three distinct periods in the development and gradual improvement of the respondent worker’s injury as detailed at paragraph 20, the Member preferred the opinion of Dr Edger in support of the claim for incapacity.
(b) From paragraphs 22 to 33 of the Statement of Reasons, the Member engaged with the appellant’s submissions that the respondent worker’s alleged gym activities since the date of injury were inconsistent with the claim for incapacity.
With respect, the Member carefully considered the appellant’s submissions that the respondent worker attended the work gym 19 times from 3 June 2021 to December 2021, the Facebook photos dated 23 November 2021 showed the respondent worker lifting 150kg 6 times, and expenditure thereafter showed that he attended gyms on at least 3 occasions in 2022-23 [see paragraph 32 of the Member’s Statement of Reasons].
Nevertheless, the Member preferred the respondent worker’s evidence under cross-examination of ‘appropriate concessions’ of the gym exercise in November 2021 but in the context that he had previously lifted far greater weights and qualified for Australia’s Strongest Man competition.
The Member also found at paragraphs 38 and 39 of the Statement of Reasons that the respondent worker ‘candidly answered questions about the modest purchases for health drinks and protein powders’ and ‘there is no evidence to support the [appellant’s] suspicions that [the respondent] has returned to gym activity or bodybuilding since November 2021’.
(c) The appellant submitted the respondent’s alleged fear of driving was contradicted by Centrelink Carer applications.
From paragraphs 40 to 44 of the Statement of Reasons, the Member engaged with the respondent’s submissions in this regard. The Member preferred the respondent worker’s explanation that Dr Cooke noted symptoms in April 2022 when they were at their worst, and found symptoms fluctuated at the time the Centrelink Care applications were made.
In short, the Member accepted the respondent worker had ‘good days’ consistent with the brief surveillance footage of him driving and carrying his 4-year old daughter ...
(d) At paragraphs 45 to 53 of the Statement of Reasons, the Member engaged with the appellant’s submissions that the Centrelink Carer’s forms and the bank records undermined the respondent worker’s credit as his wife did not stop working and he was able to care for the family.
With respect, the Member rejected the appellant’s submissions in this regard accepting the respondent worker’s candid answers under cross-examination, and noting the appellant had no medical evidence to support those submissions [see paragraphs 52 and 53 of the Statement of Reasons].
(e) From paragraphs 54 to 63 of the Statement of Reasons, the Member engaged with the appellant’s submission that the respondent worker’s ability to travel to shops demonstrated in the bank records was inconsistent with his alleged restricted ability to drive.
With respect, the Member commented at paragraph 54 of the Statement of Reasons that Dr Williams in his report dated 11 November 2022 noted the respondent worker himself did not say to Dr Williams there was an ‘inability to go to the shops and return’. Instead, the doctor recorded that history from the respondent worker’s wife.
It is clear from the Member’s detailed reasons from paragraphs 92 to 103 of the Statement of Reasons that she accepted the respondent worker’s submissions as summarised at paragraphs 57 to 63 of the Statement of Reasons.
(f) From paragraphs 64 to 71 of the Statement of Reasons, the Member carefully considered the appellant’s submissions that the surveillance footage was contrary to the allegations of incapacity.
The Member accepted the respondent worker’s submissions that the surveillance footage was taken after Dr Edger noted improvement of symptoms and was for only 20 minutes over a 5-day period from 24 April to 24 June 2023.
Moreover, the Member noted the appellant’s [independent medical examiners’] reports commenting on the surveillance footage maintained their diagnosis of FND but acknowledged some observed inconsistencies.
The Member at paragraph 71 preferred Dr Edger’s supplementary report dated 20 November 2023 that the surveillance was ‘inconclusive’ as the doctor was aware of the improvement of symptoms at the time the footage was taken.
(g) From paragraphs 72 to 78 of the Statement of Reasons, the Member engaged with the appellant’s submission that the evidence of the respondent worker’s wife, … should not be accepted as she did not return to full-time work after liability was denied.
However, the Member noted at paragraphs 77 and 78 of the Statement of Reasons that the section 78 Notice was issued on 24 March 2022 and so her working hours in 2023 were not relevant to her credit.
(h) From paragraphs 79 to 91 of the Statement of Reasons, the Member then engaged the parties’ overall submissions on credit, the medical evidence and incapacity.
Under the heading “CONSIDERATION” from paragraphs 92 to 103 of the Statement of Reasons, the Member carefully detailed her reasons and findings based on the above consideration of the evidence and various submissions.
With respect, there is nothing ‘ambiguous’ in the Member’s detailed reasons and findings that the cross-examination on the bank records was not ‘sufficiently persuasive to cause [her] to reject the [respondent’s] evidence as to capacity prior to 31 March 2023. The expenditure could have had many and varied credible explanations.’
In particular, the Member outlined at paragraphs 93 to 95 that the surveillance evidence had to be considered in conjunction with the medical evidence. In that regard, the Member accepted that the surveillance took place post-31 March 2023 when Dr Edger considered the respondent worker had improved sufficiently to perform 12 hours work over 3 4-hour days.”
Consideration
Given what has been submitted by the appellant, I set out the principles applicable to a Commission Member’s obligation to give reasons.
The starting point is s 294(2) of the 1998 Act, which I have set out above. The obligation is to provide a brief statement of reasons. In broad terms, this obligation involves the decision maker engaging with the issues canvassed or raised by the parties. The nature of the duty is further explained in r 78 of the Rules. The rule requires the decision maker to address the three matters referred to in r 78(2). Rule 78(3) provides further direction as to how the reasons are to be stated sufficiently, namely that each party is made aware of the decision maker’s view of their case.
Arising from the following cases, it can be seen that a member’s requirement to give reasons and their review on appeal is guided by the following principles:
(a) Compliance with the requirements of r 78 of the Rules.
(b) The High Court in Wingfoot Australia Partners Pty Ltd v Kocak[54] stated that:
“The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law”.
(c) Reasons must be read as a whole.[55]
(d) Administrative decisions, such as those made by tribunal members, ought not be minutely examined by “over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.”[56] After Wu Shan Liang, this matter was returned to by the Court in Roncevich v Repatriation Commission[57] where Kirby J said as follows:
“Upon this basis, it may be accepted (as the primary judge concluded in the Federal Court) that the reasons of the Tribunal were brief. However, that is not necessarily a flaw in the context of such a busy administrative tribunal. Courts conducting this form of review have been repeatedly enjoined by this Court to avoid overly pernickety examination of the reasons. The focus of attention is on the substance of the decision and whether it has addressed the ‘real issue’ presented by the contest between the parties.”
(e) In NSW Police Force v Newby,[58] the then President of the Workers Compensation Commission, Keating DCJ, set out the principles pertaining to inadequacy of reasons. The then President stated that the inadequacy of reasons must disclose “that the Arbitrator failed to exercise his statutory duty to fairly and lawfully to determine the application”.[59] Further, his Honour said that “[t]he standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker”.[60]
[54] [2013] HCA 43, [55].
[55] Beale.
[56] Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 (Wu Shan Liang), [31].
[57] [2005] HCA 40, [64], footnotes omitted.
[58] [2009] NSWWCCPD 75 (Newby).
[59] Newby, [149].
[60] Newby, [15].
The obligation of a Commission decision maker to give reasons for their decisions was examined in Fisher v Nonconformist Pty Ltd.[61] Kirk JA noted that the duty for administrative decision makers was not the same as that applying to judges. His Honour remarked that usually the duty is expressed in a statute, noting the provisions of s 294(2) of the 1998 Act and r 78 of the Rules that apply to the Commission. In respect of the duty upon judges to give reasons, Kirk JA referred to the following passage from Ming v Director Public Prosecutions (NSW):[62]
“What can be seen is that the judicial duty to give reasons does not extend to referring to every argument or piece of evidence. Relevantly for current purposes, what is required is that the judge expose the reasons for resolving a point critical to the contest between the parties, do justice to the issues posed by the parties’ cases, refer to evidence that is important or critical to the proper determination of the matter, and generally explain any conclusion on a significant factual or evidential dispute that is a necessary step to the final decision.”[63]
[61] [2024] NSWCA 32 (Fisher).
[62] [2022] NSWCA 209 (Ming).
[63] Fisher, [139], quoting from Ming, [43].
As can be divined from the cases above, r 78 provides a short form guidance to members’ decision making, which is consistent with these various authorities. Reasons can be brief, they must expose the member’s path of reasoning in reaching particular conclusions and should not be subject to overly close scrutiny in search of error.
In this matter, the Member defined the dispute that she was charged to quell at reasons [3] in the following terms:
“The issue in dispute is whether the [respondent] has any continuing incapacity for work. The [appellant] alleges that the [respondent] is not a witness of credit and is malingering and exaggerating his symptoms.”
No issue is taken with this description of the dispute.
Whilst the dispute might thus be seen to sit within a relatively narrow compass, there were a number of different categories of evidence going to the respondent’s capacity for work, namely a small quantity of surveillance footage, bank records, a Centrelink application, the respondent’s oral and written evidence, together with the histories given to various medical practitioners, which the appellant says revealed inconsistencies.
The appellant makes a number of broad allegations about what it submits is the inadequacy of the Member’s reasons. For example, asserting that there is no statement as to which evidence was preferred[64] or which evidence was accepted or not accepted[65] and that the Member has not addressed the inconsistencies in the evidence.[66] Unhelpfully, these assertions have not been developed with any particularity. However, when I review the evidence, the following is apparent. The medical evidence is broadly consistent with regards to diagnosis. Two of the doctors have the same view on incapacity, the third doctor thinks that the respondent is fit for pre-injury work, having viewed the surveillance footage. The doctors – Edger, Pothala and Williams – all viewed the surveillance material. The asserted inconsistency relates to the respondent’s complaints of incapacity and limitations of activity in contrast to that depicted on the footage or by what the appellant says the bank records reveal. Drs Pothala[67] and Edger both say the respondent has some capacity for work, neither alters their opinion. It is true however that Dr Pothala says the footage does not alter the diagnosis but notes that it may cast doubt on it.[68] Dr Williams does not change his diagnosis but says the respondent is fit for pre-injury work.[69]
[64] Appellant’s submissions, [27].
[65] Appellant’s submissions, [29].
[66] Appellant’s submissions, [30].
[67] Reply, p 162, [3].
[68] Reply, p 161.
[69] Reply, p 163.
The Member dealt with this firstly by noting the respective submissions from both parties at reasons [80]–[81] and [87]–[89] before deciding this controversy at reasons [93]–[96]. I accept that these reasons are not lengthy, but they do not have to be. They are direct, pithy, and to the point. They are stated sufficiently so as to satisfy the requirement in r 78(3). Stating reasons at greater length would not have changed the result in this regard. I do not accept that the appellant has shown error in the Member’s reasoning on the medical evidence.
This leads me to the next category of evidence, the bank records. The bank records were deployed for a number of purposes by the appellant. The appellant submitted the following to the Member about the bank records:
“The [appellant] relies on the entire bank accounts at [the appellant’s second Application to Admit late Documents dated 21 February 2024] in submitting they indicate the [respondent] is able to travel to shops, appointments for his children and for holidays. The [appellant] submits that the frequency of the [respondent’s] purchases do not support the [respondent’s] alleged lack of functionality and severely impinges on his credit.”[70]
[70] Appellant’s submissions to the Member dated 6 March 2024, [5].
The Member dealt with the bank records at reasons [92], which I have set out in full above. I note that the Member’s finding is limited to the period prior to 31 March 2023. If one reads the decision as a whole, it is apparent that the Member was satisfied with how the respondent responded to the various issues raised in cross-examination, including the bank records, and did not find them to be “sufficiently persuasive”[71] for the Member to reject the respondent’s evidence. In short, it appears that the Member found the respondent’s evidence to be acceptable. Additionally, the Member opined that there could be other explanations for the expenditure in the bank records. But it is apparent that the appellant’s argument that the bank records revealed inconsistencies with what the respondent had asserted about his poor capacity and functionality was dealt with by the respondent in cross-examination to the Member’s satisfaction. As above, these reasons were direct and succinct. This does not make them inadequate nor would have greater detail altered the finding which was available on the evidence. The complaint, in as much as it applies to the bank records, is not sustained.
[71] Reasons, [92].
Next, I turn to the suggestion that the Member failed to determine whether the respondent was a witness of credit and that there are no reasons on this issue.[72]
[72] Appellant’s submissions, [33].
The appellant clearly attempted to impugn the credit of the respondent. This was put in terms to the Member at various places in the appellant’s written submissions to the Member,[73] and was the general content and tenor of all the submissions.
[73] See appellant’s submissions to the Member dated 6 March 2024, [5], [14] and [36].
This is a case where the Member at first instance had the benefit of observing the respondent being cross-examined. Questions of acceptance or rejection of evidence and the weight to be given to it are within the province of the first instance decision maker.[74]
[74] Shellharbour City Council v Rigby [2006] NSWCA 308.
In my view, reading the Member’s decision as a whole, the Member generally accepted the respondent’s evidence where it coincided with the medical opinion. This is apparent from a reading of reasons [94]–[99]. Where the Member did not accept the respondent’s evidence was from 31 March 2023, as revealed by Dr Edger’s opinion and the surveillance material. The Member found evidence that the respondent had exaggerated his symptoms, which caused the Member to ascribe greater capacity than prescribed by the medical opinion.
The appellant in truth argues the credit issue as a binary contention, either the respondent’s evidence was rejected in full or, if not, accepted in full. The Member’s approach was somewhat more nuanced and involved an assessment of a number of factors, including the medical opinion as to diagnosis and capacity. With respect to the appellant, this process is of the type as described in Langford; an evaluative exercise where the assessment of all the evidence is one of fact and degree. I do not accept that the Member failed to deal with the credit issue, I do not think that this is a fair reading of the decision. I do not accept this submission.
I now deal with the assertion that the Member did not deal with the allegation that the respondent was malingering.[75]
[75] Appellant’s submissions, [34].
Malingering is a term which means an injury, or in this case incapacity arising from a real injury, is feigned or exaggerated. Whilst I cannot find the submission to the Member from the appellant that used the term “malingering” (and I have not been taken to it), I accept that this assertion is the purport of the argument pursued by the appellant before the Member. In terms, the appellant argued that the respondent had far greater capacity for work than he had represented. In short, he was exaggerating his incapacity.
The Member dealt with the respondent’s exaggeration of his incapacity at reasons [96]–[99], finding that the respondent had indeed exaggerated. While the word or term “malingering” was not used by the Member, nothing turns on what is a matter of phraseology. There is nothing in the assertion that the Member did not determine whether the respondent was malingering. The Member did decide this question. This aspect of the ground is not made out.
Finally, the appellant submits that the Member has not provided adequate reasons to support her finding of total incapacity prior to 30 March 2023.[76] The appellant points to the bank records and the concessions made by the respondent in cross-examination to ground this point.[77]
[76] Appellant’s submissions, [35], relying on what was submitted at [10]–[13] of those submissions.
[77] Appellant’s submissions, [13].
As I have described above, the Member considered evidence wider than just the cross-examination and the bank records. For the reasons expressed, the Member was not satisfied with the bank records. It is also apparent that the Member was persuaded by the surveillance footage, all of which post-dated the 30–31 March 2023 date, coupled with the fact that after this date, the medical opinion was that the respondent did have capacity for work. This is the effect of reasons [92]–[99].
As I have described above, the reasons are short and to the point. While they are short, they are consistent with the evidence, and in particular the evidence of the medical practitioners going to capacity. There is no challenge to Dr Edger’s opinion of total incapacity prior to his examination on 31 March 2023. The finding by the Member at reasons [95], that the respondent still suffered from functional neurological disorder when he consulted Dr Edger on 31 March 2023, also has not been challenged on appeal. Dr Edger was of the view that the respondent’s condition had improved on this date such that he had some capacity for work. Reading the Member’s decision as a whole, it is apparent that the Member considered all of the evidence, not just the bank records and concessions given in evidence by the respondent. No error has been established.
None of the complaints raised by the appellant in Ground B are established.
Ground B is dismissed.
As to Ground C
The appellant complains that it provided “extensive written submissions dated 6 March 2024 comparing the functionality in the bank records to that reported to various treating practitioners”[78] and that the Member did not deal with these submissions. The appellant alleges that the Member failed to respond to or engage with these submissions which were material to the central issue in the proceedings.[79] Namely, this central issue was the respondent’s capacity for work.
[78] Appellant’s submissions, [40].
[79] Appellant’s submissions, [45]–[46].
The appellant complains that the respondent did not provide any credible explanation for the expenditure contained in the bank records and the Member has not identified any credible explanations.
The appellant references a number of authorities[80] which I will deal with in the Consideration section of this ground (below).
[80] Appellant’s submissions, [36]–[38].
In reply, the respondent says that the Member did engage with these submissions. The respondent submits:
“14. As noted above, the Member engaged with all of the appellant’s submissions in detail and accepted the candid evidence of the respondent worker that the various expenditure in the bank records did not demonstrate no incapacity for work at all.
15. Moreover, there was no medical evidence to support the lay ‘suggestions’ made by the appellant that any of the expenditure was somehow inconsistent with the unanimous medical evidence supporting a diagnosis of FND.
16. The appellant’s [independent medical examiners] merely raised questions after viewing the surveillance footage but did not change their opinion on diagnosis or find no incapacity for work whatsoever.
17. The Member accepted the surveillance footage was taken after Dr Edger found on 31 March 2023 that the respondent worker’s symptoms had improved rendering him partially incapacitated. There was simply no medical evidence to undermine the strong support for total incapacity to 30 March 2023 and partial incapacity thereafter.”
Some principles arising from Dranichnikov and succeeding authorities
In essence, this ground alleges a failure on the part of the Member to deal with a “substantial, clearly articulated argument”.[81] This is a submission based upon a line of authorities commencing with Dranichnikov v Minister for Immigration and Multicultural Affairs.[82]
[81] Appellant’s submissions, [46].
[82] [2003] HCA 26 (Dranichnikov), [24], per Gummow and Callinan JJ.
Dranichnikov was an immigration case. Mr Dranichnikov was a Russian citizen who sought a protection visa on behalf of himself, his wife and child. The basis on which he sought such a visa was twofold. Firstly, that as a Russian businessman he is at risk from criminal organisations who operate in Russia who have links to the authorities. Secondly, he asserted that he was part of a more limited group consisting of businessmen who had publicly criticised law enforcement authorities for failing to take action against criminals.
In dealing with Mr Dranichnikov’s case, the Refugee Review Tribunal at first instance accepted that Mr Dranichnikov was a witness of credit, and therefore accepted the correctness of his account of the situation in Russia.
But the Refugee Review Tribunal dismissed his case and failed to deal with the argument that he was a more limited class of businessman who had taken a public stance against law enforcement authorities for failing to take action against criminals. It is failure to deal with this latter argument which gave rise to the error of law. The decision of the Refugee Review Tribunal was quashed by the High Court, and it was directed to review the delegate’s decision in accordance with law.
In Wang v State of NSW,[83] the Court of Appeal was called upon to deal with a Dranichnikov submission in that it was asserted that the primary judge had failed to address written submissions advanced by the appellant. The Court of Appeal said as follows:
“The submission invoked the decision of the High Court in Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 in which it was stated that a failure to respond to a substantial, clearly articulated argument relying on established facts was a constructive failure to exercise jurisdiction: at [24] to [25] per Gummow and Callinan JJ. The decision is not authority for the proposition that any failure to refer to any argument put to a trial judge amounts to error. It is necessary to engage with the nature and materiality of the argument in the context of the issues in the proceedings. In Dranichnikov, the Refugee Review Tribunal, in considering whether Mr Dranichnikov had a well-founded fear of persecution on the grounds of his status as a member of a particular social group, overlooked or misconceived the particular social group to which he claimed to belong. That was the central question in the proceedings.
The approach taken in the present case was to list every submission put on behalf of Mr Wang to which the primary judge did not refer in his judgment and to assert error on that basis. That reflects a wrong approach. The primary judge was not required to address every submission advanced during the course of the hearing: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 271.
As noted in the State’s written submissions, Mr Wang’s written submissions appear to identify only two particular submissions advanced by him which were material to the outcome and which were not addressed by the trial judge, namely, the submissions relating to Mr Wang’s capacity in the English language … and the submissions in relation to wrongful arrest ... Otherwise, the table of alleged omissions does not articulate any cogent basis for challenging the judge’s findings. Nor does it establish a constructive failure to exercise jurisdiction.”[84] (emphasis added)
[83] [2019] NSWCA 263 (Wang).
[84] Wang, [63]–[65].
The appellant has quoted the authorities that appear in my decision of Sarheed v C1 Formwork Group Pty Limited.[85] As is apparent, at Sarheed [149] I was dealing with a Dranichnikov submission and the cases that followed it. Sarheed [149] provides:
[85] [2021] NSWPICPD 7 (Sarheed), [149].
“The application of the principles stated in Dranichnikov has been the subject of frequent consideration. In DNA17 v Minister for Immigration and Border Protection,[86] the Full Federal Court of Australia said as follows:
[86] [2019] FCAFC 146 (DNA17).
‘52. In Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; (2003) 236 FCR 593, the Full Federal Court stated (at [46] and [47]):
‘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. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [87]–[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason ...
The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegate’s decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.’
53. In CPE15, Mortimer J referred to Griffiths J’s summary of the authorities in SZSSC and stated (at [40]):
‘The kind of argument which must have been articulated by an applicant in order for the Tribunal to exceed its jurisdiction by failing to consider it was described by Griffiths J in SZSSC as ‘a substantial and clearly articulated argument’. In other words, the Tribunal as the decision-maker on the merits must have clearly been put on notice by an applicant of a contention, submission or argument the applicant wished to make in support of a decision in her or his favour on the review. Unless the argument has been ‘clearly articulated’, the Tribunal would not be put on notice. Unless the argument is ‘substantial’, a reviewing court cannot be confident or sufficiently confident that the Tribunal’s failure to deal with the argument may have affected or been material to the conclusion it reached. Ultimately the argument put by an applicant in these circumstances must be characterised as capable of affecting the formation of the state of satisfaction required by section 65 of the Migration Act. If it is not so capable, then the Tribunal will not exceed or fail to exercise its jurisdiction in not considering such an argument.’
54. As the above passage makes clear, the failure to consider an argument will only constitute a constructive failure to exercise jurisdiction, and thereby jurisdictional error, if the argument is substantial in the sense that it is capable of altering the decision. In that sense, the requirement of substantiality is equivalent to considering whether the failure is material to the outcome. As the Full Federal Court recently observed in Singh v Minister for Home Affairs [2019] FCAFC 3 at [35]–[37], the ultimate concern is with the identification of jurisdictional error: the review body not performing the function entrusted to it or not performing it in an authorised way. The degree of consideration which is necessary for jurisdiction to have been exercised is affected by the significance of the submission made to the decision-maker. In that regard, it is necessary to have regard to the whole of the decision-maker’s reasons and the issues considered.’ (emphasis added)”.
Consideration
I have considered the appellant’s submissions before the Member. I accept that the appellant made submissions to the Member about the bank records and what it said these records revealed about the respondent’s functionality or capacity for work. Prosecuting this argument was the clear intent of the cross-examination of the respondent by the appellant.
As is apparent from a consideration of the passages from Dranichnikov and Wang (above), the principle relied on by the appellant requires: (1) the putting of a substantial, clearly articulated argument and, (2) which argument relied on established facts and, (3) not every argument must be dealt with, rather the nature and materiality of the argument needs to be engaged within the context of the dispute being decided.
At paragraph [46] of the appellant’s submissions the Dranichnikov principle is only partly set out. The appellant says the following:
“The Appellant submits that by failing to respond and engage with his submissions, the Member failed to engage and respond ‘to a substantial, clearly articulated argument that was material to the central issue in these proceedings’.”
I accept this proposition as far as it goes. The appellant most certainly did make submissions about the respondent’s capacity by reference, inter alia, to the bank records. This submission, however, fails to identify the “established facts” relied on by the appellant to support the “substantial, clearly articulated argument” that it is said the Member did not respond to, indeed it is silent on the facts. I accept that the bank records themselves reveal various expenditures which, when the transcript is examined, were not really disputed. I say some were not really disputed because it is true that the respondent did not precisely recollect some of the transactions. However, what was being asked of the Member was to draw the following conclusions or inferences from the bank records. Firstly, that the transactions revealed a level of functionality or capacity which was greater than that revealed in the respondent’s statements or as disclosed to the various doctors. Secondly, and as a corollary to the first point, the respondent was exaggerating his symptoms and incapacity. These two conclusions or inferences were central to the dispute.
I accept that the bank records, as evidence, are an established fact. But by and of themselves they do not support the submission the appellant says the Member failed to deal with, that is that the activities revealed in the bank records reveal a greater functionality or capacity on the respondent’s part. As I remark above, this relies upon the Member drawing certain inferences flowing from the bank records, the respondent’s evidence and the histories taken by doctors. These matters were very much in contest and the appellant has not taken me to what it says are the “established facts” for the purposes of this argument.
Turning to the submission that the respondent has not provided a “credible explanation for this expenditure”,[87] this is a very general attack upon the answers that the respondent gave in cross-examination. The respondent answered a series of questions about the expenditure as revealed in the bank records. In the appellant’s submission to the Member on this issue the following was put:
“The [appellant] submits that the [respondent] is not a witness of truth as there are too many inconsistencies with his reported disability/symptoms and his demonstrated functionality in the bank accounts and surveillance.”[88]
[87] Appellant’s submissions, [43].
[88] Appellant’s submissions to the Member dated 6 March 2024, [36].
In this submission to the Member, the appellant drew attention to various expenditures which it maintained revealed capacity.[89] It is hard to discern the credit issue with the explanations about the bank records, as the respondent in cross-examination accepted a number of them and explained the expenditures he remembered. Indeed, the appellant appears to rely on the answers given in cross-examination to support a submission about the respondent possessing greater capacity. Any credit issue, rather, depends upon the Member drawing inferences about the bank records and finding that they reveal capacity inconsistent with the respondent’s stated complaints about his incapacity.
[89] Appellant’s submissions to the Member dated 6 March 2024, [4b], [5], [6], [14c], [17], [24] and [26].
The submission on appeal is that there was no credible explanation for the expenditures. This was not an argument that was put to the Member, rather the submission was directed to the respondent’s capacity. I do not therefore accept this submission.
As stated above, the Member dealt with the submission as it was directed to the bank records at reasons [92]. However, the bank records were just an aspect of the broader and central dispute about what was the respondent’s capacity for work before and after 31 March 2023. It was the broad submission which was made at paragraph [36] (of the appellant’s submission of 6 March 2024) put to the Member by the appellant (set out above). The Member answered this broad submission by not only considering the bank records, which the Member was not sufficiently persuaded about,[90] but went further and considered the evidence, especially the medical evidence.[91] In many respects, this ground is an attempt to cavil with findings made by the Member in the guise of prosecuting a failure to deal with a submission.
[90] Reasons, [92].
[91] See reasons, [93]–[96].
This ground fails because:
(a) The appellant has failed to identify the “established facts” as discussed in the authorities[92] that supported the submissions said to have been put and not answered. As stated above, even if the bank records themselves were the established fact (and that is the way this submission in support of this ground reads), the establishment does not of itself support the argument proposed by the appellant. The bank records themselves, when one considers how they were deployed, can only constitute a basis for the Member to draw inferences or conclusions when evaluating other evidence in the matter.
(b) In any event, even were I to accept the proposition that facts were established to support the submission made to the Member, the Member has dealt with the nature and materiality of the submission,[93] which went to the central issue of capacity.
[92] Dranichnikov; Wang.
[93] Sarheed, [149]; Wang, [63]–[65].
Ground C is dismissed.
DECISION
The appellant has been unable to establish error on the part of the Member and as a consequence, the appeals fails.
I make the following orders:
“1. I extend the time for the respondent to file a Notice of Opposition to the appeal to 19 July 2024
2. The Certificate of Determination dated 9 May 2024 is confirmed.”
Judge Phillips
PRESIDENT
4 April 2025
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