Tran v Westpac Banking Corporation - [2018] NSWWCCPD 4

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Tran v Westpac Banking Corporation [2018] NSWWCCPD 4
APPELLANT:	Thi Bich Van Tran
RESPONDENT:	Westpac Banking Corporation
INSURER:	Self-insured
FILE NUMBER:	A1-2461/17
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:	13 September 2017
DATE OF APPEAL DECISION:	8 February 2018
SUBJECT MATTER OF DECISION:	Section 352 of the Workplace Injury Management and Workers Compensation Act 1998, absence of reliable transcript of arbitral hearing; need for remitter in the circumstances of the case.
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:	Stacks Goudkamp
Respondent:	HWL Ebsworth
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 13 September 2017 is revoked. 2. The matter is remitted for re-determination by another Arbitrator.

INTRODUCTION

This appeal raises alleged errors in the fact finding process, and also the correctness of the test applied going to whether a defence was made out pursuant to s 11A(1) of the Workers Compensation Act 1987 (the 1987 Act) in an allegation of psychological injury. The transcript of the arbitration hearing was significantly inadequate, due to unknown technical deficiencies in the sound recording. For reasons which follow, I conclude that, in all the circumstances, I cannot properly carry out the task of conducting an appeal pursuant to s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), in the absence of an appropriate transcript.

BACKGROUND

Thi Bich Van Tran was employed by Westpac Banking Corporation (the Bank) as a business analyst. She commenced work with the Bank in late 1993. In about 2015 Ms Tran had difficulties using a software application (SAS) with which she was unfamiliar. Aspects of Ms Tran’s reporting function were to be automated. Ms Tran also came under the supervision of a new manager, Akiko Hatagami, from June 2015. In October 2015 Ms Tran received a performance review which she was unhappy with. Her attempts to change the outcome of this review, in late 2015, were unsuccessful. Ms Tran was informed that she was to be placed on formal performance management. Ms Tran took carers’ leave from November 2015 to 26 February 2016 to care for her mother, who underwent surgery.
After her resumption Ms Tran was invited, on 14 March 2016, to attend a performance management interview on 17 March 2016. She saw a doctor for stress on 15 March 2016, and was off work from 15 to 24 March 2016. On 12 April 2016 Ms Tran was invited to another such meeting, to be held on 13 April 2016. She lodged a ‘grievance’ on 12 April 2016, involving allegations of ‘bullying and harassment’ against Ms Hatagami. Performance management was placed on hold while the ‘grievance’ was investigated. Ms Tran (with a union representative for support) was interviewed by Human Resources on 22 April 2016. On 13 May 2016 Ms Tran was informed that her allegations against Ms Hatagami were dismissed as “unsubstantiated”.[1] Human Resources recommended that Ms Tran be provided with a structured performance improvement plan, and a training schedule, dealing with the SAS program and automation of her reporting function. Ms Hatagami was to continue to provide coaching and training in areas of concern.[2]
[1] Reply, pp 19–21.
[2] Ms Tran’s statement dated 27 June 2016 (Ms Tran’s statement), [23].
On 26 May 2016 Ms Tran received an email from Ms Hatagami regarding training. She saw her general practitioner, Dr Tan, was placed off work, and on 2 June 2016 consulted Dr Smith, psychiatrist.[3] She did not resume her duties thereafter. Ms Tran lodged a claim form for psychological injury dated 26 July 2016. The Bank issued a s 74 notice dated 8 August 2016.[4] It said that the Bank considered “the date of injury to be 15 March 2016”, this being the “first incapacity as a result of this injury”. The Bank accepted that Ms Tran had sustained a psychological injury, but stated that it was “wholly or predominantly caused by reasonable action taken or proposed to be taken on behalf of Westpac with respect to performance appraisal or discipline”. The Bank stated that no compensation was payable due to s 11A(1) of the 1987 Act.
[3] Dr Smith’s report dated 4 October 2016.
[4] Reply, pp 45–53.
The Bank maintained a similar attitude in a s 74 notice dated 22 August 2016.[5] A s 74 notice dated 28 April 2017 additionally asserted that Ms Tran’s “condition has been replaced by a new condition in relation to which no claim for compensation has been made”.[6] This was based on a report the Bank obtained from Dr Vickery dated 3 April 2017,[7] which said that Ms Tran was then suffering from an Acute Adjustment Disorder with Anxiety and Depression, as a result of her termination by the Bank on 16 March 2017.[8]
[5] Reply, pp 56–61.
[6] Application to Resolve a Dispute (Application), pp 45–52.
[7] Application, pp 55–64.
[8] Reply, pp 155–6.

THE ARBITRAL PROCEEDINGS AND DECISION

The Application alleged “psychological injuries” on 2 June 2016 “as a result of inappropriate behaviour of her manager”. It claimed weekly compensation on a continuing basis from 2 June 2016, medical and related expenses, and lump sum compensation in respect of 20% permanent impairment for primary psychological injury. The Bank’s Reply conceded Ms Tran suffered psychological injury on “15 March 2016 pursuant to s 15”, which it stated was a “deemed” date. It said that there was a defence pursuant to s 11A(1) of the 1987 Act on the basis of “performance appraisal and/or discipline”. The Reply submitted that from 16 March 2017 the effects of a new injury replaced the previous condition, and as this new condition had not been claimed, there was no jurisdiction to make a determination in respect of it. The Reply raised issues going to quantum which do not need to be recited for current purposes.
An arbitration hearing was held on 31 July 2017. Ms Tran was represented by Mr Carney, and the Bank by Mr Dodd. The matter was dealt with on the basis of the documents, there were no applications to adduce evidence or to cross-examine. The Commission issued a Certificate of Determination dated 13 September 2017, accompanied by reasons, providing that there be an award in favour of the Bank.[9]
[9] Tran v Westpac Banking Corporation [2017] NSWWCC 223 (decision).
The Arbitrator referred to the various potential dates of injury, being 15 March 2016, 2 June 2016 and 16 March 2017.[10] Additionally, Ms Tran’s counsel, at the arbitration hearing amended the Application, to substitute “26 May 2016” for “2 June 2016”, as the pleaded date of injury.[11] The Arbitrator summarised the statement evidence of Ms Tran and Ms Hatagami.[12] He referred to a document headed “Speaker Notes – Meeting with Van Tran and HR”, which dealt with the ‘grievance’ raised by Ms Tran against Ms Hatagami.[13] He summarised the views of Dr Smith and Dr Vickery.[14]
[10] Decision, [9]–[18].
[11] T5.32–6.6.
[12] Decision, [19]–[58].
[13] Decision, [59]–[62].
[14] Decision, [63]–[71].
The Arbitrator rejected “any suggestion that Ms Hatagami bullied, harassed or failed to support [Ms Tran] in her dealings with her”. Ms Tran stated that on the first day of her carer’s leave (to look after her mother) she was telephoned by Ms Hatagami to ask her to share her password. Ms Tran said this “felt like it was harassment”, as Ms Hatagami had not given her “time to arrange these things”, and she “called the union”. She “did not hear from [Ms Hatagami] again” whilst on leave.[15] The Arbitrator rejected the assertion that this involved harassment. Provision of the password, as other staff would need to cover for Ms Tran in her absence, should have been attended to before Ms Tran left for her leave. Ms Tran’s involvement of the union was “without justification”. It did not appear that Ms Tran ever gave the password to Ms Hatagami, or the courtesy of a reply to her request. It appeared other staff had to do a “work around” in the absence of the password.[16]
[15] Ms Tran’s statement, [13].
[16] Decision, [74]–[75].
The Arbitrator described Ms Tran’s institution of ‘grievance’ proceedings against Ms Hatagami, rather than attending the performance appraisal on 12 April 2016, as “totally unjustified”. He said he “endorse[d] the findings recorded in the speaker notes”.[17] Those findings, in general terms, found the allegations against Ms Hatagami, of bullying and harassing behaviour towards Ms Tran, to be “unsubstantiated”. The Arbitrator said it was “unremarkable” that Ms Hatagami needed to check the rules regarding leave, when Ms Tran sought approval for carer’s leave.[18]
[17] Decision, [76].
[18] Decision, [73].
Ms Hatagami at one point made an error reading one of Ms Tran’s medical certificates, regarding when Ms Tran would return following an absence. Ms Hatigami said that when she realised this, she explained her error and apologised. The Arbitrator said this was “unremarkable” in a busy workplace.[19]
[19] Decision, [41] and [72].
The Arbitrator dealt with what he described as the “date of injury”. He said it was conceded (I infer on Ms Tran’s behalf) that the allegation of an injury occurring on 26 May 2016 was based on the following passage of Ms Tran’s statement[20]:
“Nothing happened for training arrangements. Then on 26 May 2016 [Ms Hatagami] sent me an email at 9.30pm which caused me more stress. In the email she said that she provided training with me but that was wrong. There was no scheduled training. In her email she said that I had failed at some things and that she said that she had provided training. She made me feel so upset. I did not meet her expectation but I did not understand how to communicate with her and how to meet her expectation if the training wasn’t structured. I felt intimidated, stressed and useless. I couldn’t sleep that night.”[21]
[20] Decision, [78].
[21] Ms Tran’s statement, [24].
The Arbitrator said that it was after receipt of this email that Ms Tran ceased working, and came under Dr Smith’s care from 2 June 2016.[22]
[22] Decision, [49]–[50].
The Arbitrator referred to Ms Hatagami’s statement, in which she said:
“On 10 May we were notified that the HR investigation was ready and a meeting was planned for 13 May. I believe HR met with Van and delivered the outcome. Van’s union representative asked for time to review the result. I could still not commence the formal performance management but I continued with the informal process, going with tasks and time to complete tasks. I did tell Van in an email that I suggested she use our one on one as our training for better communication and to use the information for her training but she didn’t.”[23]
[23] Ms Hatagami’s statement dated 30 June 2016 (Ms Hatagami’s statement), [30], summarised and quoted in decision, [53].
The Arbitrator said that he assumed the email referred to in this passage was “the one referred to by [Ms Tran] of 26 May 2016”.[24] The Arbitrator further referred to Ms Hatagami’s statement where she said:
“From what I had seen Van was not taking any learning from my one on one training so I could not justify sending her to an external course or spending money on a course that I was unsure whether she would get anything out of.”[25]
[24] Decision, [54].
[25] Ms Hatagami’s statement, [31].
Ms Tran stated that after receiving the email on 26 May 2016, she saw her doctor again and “got a week off from Dr Than”.[26]
[26] Ms Tran’s statement, [26]
The Arbitrator said that the email received on 26 May 2016 was “not tendered in the case”. He noted a submission by the Bank that he would not be satisfied, on Ms Tran’s description, of the contents of the email. The Arbitrator said that on Ms Tran’s description the email dealt with training and performance. He referred to Ms Hatagami’s statement, which confirmed the email concerned Ms Tran’s performance, “in particular her unwillingness, or inability to undergo required training”.[27] The Arbitrator observed that the email was not mentioned in Dr Smith’s report. He noted a submission by the Bank that Dr Smith and Dr Vickery, whatever the diagnosis, were both of the view that Ms Tran’s condition “was caused by her interaction with Ms Hatagami concerning [Ms Tran’s] performance”.[28]
[27] Decision, [79].
[28] Decision, [80].
On the topic of ‘injury’, the Arbitrator said:
“83. Mr Dodd submitted that the application must fail because the evidence was weak in any event as to establishing that [Ms Tran] suffered a psychological injury on 26 May 2016. That incident was not referred to by Dr Smith or Dr Vickery.
84. I agree that the pleaded injury date of 26 May 2016 makes [Ms Tran’s] case untenable.”[29]
[29] Decision, [83]–[84].
The Arbitrator then turned to a consideration of the defence based on s 11A(1) of the 1987 Act. He rejected the proposition that Ms Tran suffered injury on 16 March 2017 (the date of her termination). He said that Dr Vickery’s opinion regarding this date of injury, in his report dated 3 April 2017, failed to address whether any such injury was causally related to the psychiatric condition he had diagnosed previously (prior to the termination). He said, of the other suggested possible dates of injury (15 March 2016, 26 May 2016 and 2 June 2016) that to “select a particular date I find to be unnecessary”. He continued:
“[Ms Tran] was at work on the other three dates raised in this case and those dates related to the psychological condition she sustained. Accordingly it does not matter which date is selected as the evidence is clear that [Ms Tran] sustained her psychological condition whilst at work, which then gives rise to a consideration of the provisions of s 11A of the 1987 Act.”[30]
[30] Decision, [85].
After quoting s 11A(1), the Arbitrator said:
“Both Dr Smith and Dr Vickery concurred that [Ms Tran] has a psychological condition, and both concur that it arose as a result of [Ms Tran’s] experiences with Ms Hatagami regarding performance appraisal. I agree. I am satisfied that [Ms Tran’s] psychological condition was caused by reasonable actions taken by the respondent with regard to performance appraisal.”[31]
[31] Decision, [87].
The Arbitrator said, of Ms Tran’s psychological condition, “… in the final analysis it has resulted from her inability or unwillingness to upskill”.[32] He said “[t]here will accordingly be an award for the respondent”.[33]
[32] Decision, [89].
[33] Decision, [91].

THRESHOLD MATTERS

There is no dispute between the parties that the threshold requirements as to quantum pursuant to s 352(3) of the 1998 Act have been met.
The Amended Application to Appeal states that the appeal was made within 28 days of the Certificate of Determination. The Notice of Opposition disputes this, stating that the appeal was not registered within 28 days, although the Bank accepts that Ms Tran “served and attempted to file [her] appeal within time and that time was then extended by the Registrar”. The Bank notes there are no submissions on Ms Tran’s behalf dealing with the failure to register the appeal within 28 days.
The Certificate of Determination was dated 13 September 2017. Ms Tran’s initial Application to Appeal was filed on 10 October 2017, within time pursuant to s 352(4) of the 1998 Act. The Registrar issued a Direction dated 16 October 2017 stating that the initial Application did not comply with the relevant procedural requirements, and directing that an Amended Application to Appeal be filed on or before 30 October 2017. The Direction stated that a timetable would be set when a compliant Amended Application was filed, and that the appeal would “not proceed” until then. Emails from the Commission to the solicitors for the parties, enclosing the Direction, described the Application to Appeal as having been “filed and registered” on 10 October 2017. The email to Ms Tran’s solicitors described returning to them “a sealed copy of your Application – Appeal Against the Decision of the Arbitrator”.
Rule 16.2(11) of the Workers Compensation Commission Rules 2011 provides that “… an appeal is made when the application is registered by the Registrar.” Although the appeal, when initially lodged, was not to proceed until the procedural deficiencies were rectified, the material is consistent with, and I accept, the appeal was “made” on 10 October 2017. This is consistent with the allocation of a plaint number for the appeal at that time, which has continued thereafter. It is consistent with the Direction dated 16 October 2017 being made in proceedings bearing that plaint number, and the advice to the parties when the Direction was issued. The above is consistent with the approach I took in Ky v Blue Leaf Food Group Pty Ltd.[34] I am satisfied that the requirements of s 352(4) of the 1998 Act are met.
[34] [2016] NSWWCCPD 55.

GROUNDS OF APPEAL

References to Ms Tran’s grounds of appeal and submissions in support are to those in the Amended Application to Appeal filed 27 October 2017, which sets out the following grounds:
(a)    The Arbitrator erred in not finding a date of injury.
(b)     The Arbitrator erred in finding that Ms Tran’s psychological condition was caused by reasonable actions of the Bank.
(c)    The Arbitrator erred in finding that Ms Tran did not proactively seek training was significant and misinterpreted this evidence.
(d)    The Arbitrator erred when considering the evidence concerning the handling of the “medical certificate”.
(e)    The Arbitrator erred in considering the evidence of Ms Tran’s compassionate leave.
(f)    The Arbitrator erred in not considering the whole of the course of conduct and dealings before deciding that the Bank’s actions were reasonable.
(g)    The Arbitrator erred in setting out the test for deciding whether a finding of conduct that can amount to a defence under s 11A is one solely for the Arbitrator and does not need expert or medical opinion.

TRANSCRIPT

In considering the appeal, I formed a view that there were shortcomings in the quality of the transcript of the arbitration hearing, which potentially could impede my ability to deal with the appeal pursuant to s 352 of the 1987 Act. A telephone conference was held on 17 January 2018, at which the parties were represented by their solicitors. The decision in Aluminium Louvres & Ceilings Pty Limited v Zheng[35] was referred to. There was discussion about the quality of the transcript, and whether deficiencies could be cured, at least to an extent, by seeking some agreement from the parties regarding the submissions which were made at the arbitration hearing. There was also an issue going to the nature of an amendment made by Ms Tran to the pleading of injury, at the arbitration hearing.
[35] [2006] NSWCA 34; 4 DDCR 358 (Zheng).
Various areas of contention were nominated, as topics on which the parties should seek to reach agreement regarding the submissions made at the arbitration hearing. These were:
(a)    whether, having amended the pleaded date of injury to 26 May 2016, Ms Tran presented the claim as one based on a “frank incident on the amended date … or whether it was presented either in the alternative or in its entirety as an injury based on the disease provisions”;
(b)    “the extent to which the parties in their submissions raised the possibility of findings being made based on some other alternative deemed date in the event that the date of 26 May 2016 was not appropriate …”;
(c)    “the extent to which the [Bank] submitted or was in a position to submit about any such deemed dates which might be in the alternative, that is, whether there would be procedural fairness if some other date … was selected”, and
(d)    “the approach taken by both parties in submissions to how the [section] 11A argument was to be approached and whether the parties made submissions consistent with the approach taken by the Arbitrator …”.[36]
[36] Telephone conference of 17 January 2018 transcript (T2), T2 20.13–21.7.

It was requested of the parties’ solicitors:
“ACTING PRESIDENT: What I want you to do within seven days is to take instructions, talk to your counsel and work out whether some form of agreement can be reached on the topics which we’ve referred to and if it can, and if the parties are of the view that the matter can be appropriately dealt with, with a combination of the transcript plus the agreements between the parties, then those agreements could be put on record and if the Presidential Unit is advised of that, then some steps can be taken to put the parties in a position to make a statement of the agreed agreements between the parties and to lodge that.
If the parties are of a view that that won’t work, then within seven days I’d grateful if you people take instructions and talk to each other about it. If we are then told of that and that’s the view that the parties reach, then it would seem to me that probably it’s appropriate without a great deal more formality to remit the matter for further hearing by a different Arbitrator and if the matter is going to proceed on the basis of an agreement between the parties I think we would need to then consider also the extent to which the parties might need some other timetable to make submissions which take account of what’s in the agreement. But the starting point is whether a form of agreement can or can’t be reached.”[37]
[37] T2 22.35–23.26.
Ms Tran’s solicitor forwarded an email to the Commission on 24 January 2018. The Bank’s solicitor was copied into the email and has not suggested that the email misstated the position of the parties. The email said, in part:
“The parties have not been able to reach agreement on the issues raised at the teleconference.
The Appellant maintains that her claim was made on the basis of a deemed injury date. This is disputed by the Respondent.
Discussion about this aspect of the matter takes up a substantial part of the largely untranscribed transcript.”
On 24 January 2018 a Direction was issued to the parties, directing them to lodge short submissions by 31 January 2018 dealing with:
“Whether it is appropriate, given the limitations in the available transcript of the arbitration hearing, and the lack of agreement, that the matter be remitted for hearing by a different arbitrator. The attention of the parties is drawn to Aluminium Louvres and Ceilings Pty Ltd v Zheng [2006] NSWCA 34; 4 DDCR 358 at [32]–[34] (per Bryson JA, Handley JA and Bell J agreeing). If either party opposes that course, such party should include submissions dealing with how the appeal should be conducted in the absence of a coherent transcript of the arbitration hearing.”

Ms Tran’s Submissions Relating to the Transcript

Ms Tran reiterates that the parties were unable to reach agreement on matters raised at the telephone conference. She submits that the transcript “is so contaminated as to substantially impede the due exercise of powers of the presidential member under s 352”. She refers to Zheng[38] and to Wyong Shire Council v Paterson.[39] Ms Tran submits that “a transcript so contaminated is a greater impediment than no transcript at all”. She refers to Nepean Rubber Moulding Pty Ltd v Veljanoski[40] and Greater Western Area Health Service v Johnston,[41] two Presidential appeals which were remitted for re-determination due to the absence of transcript.[42]
[38] Zheng, [32].
[39] [2005] NSWCA 74; 5 DDCR 13 (Paterson).
[40] [2014] NSWWCCPD 3 (Veljanoski).
[41] [2010] NSWWCCPD 100 (Johnston).
[42] Ms Tran’s submissions on transcript, [1]–[7].
The appellant submits that the matter should be remitted for re-determination by a different Arbitrator.

The Bank’s Submissions Relating to the Transcript

The Bank submits the matter should not be remitted for redetermination. It refers to the decision in Zheng, and notes that in that matter the absence of an arbitral transcript was dealt with by acceptance by the Presidential member of correspondence from the employer’s solicitor, going to the limitations on cross-examination imposed by the Arbitrator.
The Bank refers to a question which has arisen “regarding the date of injury relied upon”. It submits this was dealt with by the Arbitrator.[43] It refers to a letter from Ms Tran’s solicitors dated 19 June 2017, the subject of an application by the Bank to rely on fresh evidence on the appeal, which it submits is consistent with the amendment made. It submits “[t]here is NO reason why the Presidential Member should doubt the record of the Arbitrator in paragraphs [9] to [11] of the Statement of Reasons”[44] (capitalisation in the original). It refers to the Arbitrator’s reasons at [78]–[84], which it submits dealt with Ms Tran’s reliance on the date of 26 May 2016, and how the Bank’s case was run. The Bank submits that the Arbitrator gave consideration to other potential dates of injury in his reasons at [81] and [85].[45]
[43] Decision, [9]–[11].
[44] Bank’s submissions on transcript, [7].
[45] Bank’s submissions on transcript, [8]–[9].
The Bank submits the appeal can be determined “upon the clear recording of the manner in which the case was run before him, as contained in the Arbitrator’s Statement of Reasons”.[46]
[46] Bank’s submissions on transcript, [10].
The Bank submits that no oral evidence was taken at the arbitration hearing. The appeal should be considered on the basis of the pleadings and attached documents, the Arbitrator’s reasons, the fresh evidence in the letter dated 19 June 2017 (on which the Bank seeks leave to rely) and the submissions on the appeal. Alternatively, the Bank submits, referring to Zheng,[47] that evidence could be taken about what took place before the Arbitrator, being the Arbitrator’s handwritten notes.
[47] Zheng, [34].

Fresh Evidence

The Bank seeks leave to rely, in this appeal, on a letter to its solicitors from Ms Tran’s solicitors dated 19 June 2017. The letter refers to Ms Tran having submitted a “Workers Compensation Certificate” on 15 March 2016, to her then being off work until resuming on 24 March 2016, and being off work from 27 May 2016 on an ongoing basis. It states “We confirm that her correct date of injury should be stated as 26 May 2016 (deemed date).”[48]
[48] Notice of Opposition, Annexure ‘3’.
Fresh evidence on appeal is governed by s 352(6) of the 1998 Act which provides:
“(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case.”
Practice Direction No 6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal.
In CHEP Australia Ltd v Strickland[49] Barrett JA (Macfarlan JA agreeing) dealt with the application of s 352(6) of the 1998 Act. His Honour at [27] and [30]–[31] said:
“27. In the s 352(6) context, there are two threshold questions. They arise as alternatives and are set out in the second sentence of the provision. The first goes to the issue of availability in advance of the proceedings. The second entails an assessment of whether continued unavailability of the evidence ‘would cause substantial injustice in the case’. The discretion to admit becomes available to be exercised only if the Commission is satisfied as to one of the threshold matters.”
“30. Counsel for the appellant submitted that the Commission misdirected itself in law in construing the ‘substantial injustice’ criterion in s 352(6). It was submitted that that criterion may be satisfied in circumstances where it is not possible to say that availability of new evidence would have produced a different result; and that the criterion will be satisfied if the evidence is compelling and might have influenced the outcome even though it cannot be said that it would certainly have done so.
31. … The part of s 352(6) concerning ‘substantial injustice’ does not direct attention to possibilities or potential outcomes. The task is to decide whether absence of the evidence ‘would cause’ substantial injustice in the case. There must therefore be a decision as to the result that ‘would’ emerge if the evidence were taken into account and the result that ‘would’ emerge if it were not. If the result would be the same on each hypothesis, the ends of justice cannot be said to have been defeated by exclusion.”
[49] [2013] NSWCA 351; 12 DDCR 501 (Strickland).
The Bank submits that the letter which it seeks to introduce demonstrates the way in which Ms Tran pleaded her case, which was the case the Bank was required to meet. It submits the letter became relevant, given the way in which issues about how Ms Tran pleaded her case came to light, on the arbitration hearing and on the appeal. The Bank submits failure to grant leave would deny it procedural fairness and cause substantial injustice.
The Bank’s submissions do not address the first threshold test in s 352(6) of the 1998 Act. The letter predates the arbitration hearing by about six weeks, and it may be inferred that it was in the possession of the Bank’s solicitors from shortly after 19 June 2017. Markings on it are consistent with the solicitors receiving it by email on 20 June 2017, and receiving the hard copy on 22 June 2017. The first of the threshold tests in s 352(6) cannot be satisfied, the letter was available to the Bank before the time of the arbitration hearing.
The Bank’s submissions do not address the second of the threshold tests, as explained in Strickland. The Bank submits that failure to admit the letter:
“… would be a denial of procedural fairness and cause substantial injustice in the case as the Presidential Unit would not be apprised of the basis on which [Ms Tran] pleaded her case to which the [Bank] replied.”
In applying the second threshold test, Roche DP in Drca v KAB Seating Systems Pty Ltd[50] described its operation:
“The question remains, however, whether the refusal to grant leave to rely on the additional evidence would cause a substantial injustice in the case. This requires a consideration of what the result ‘would’ be if the evidence were excluded and what the result ‘would’ be if it were admitted.”[51]
[50] [2015] NSWWCCPD 10 (Drca).
[51] Drca, [26].
The Bank does not submit that the result would be different, depending on whether or not the letter is admitted. The amendment to the date of injury proposed in the letter is consistent with the amendment made by Ms Tran’s counsel at the arbitration hearing, referred to at [8] above. The Bank’s submissions dealing with the transcript state that the letter “just reconfirms what the Arbitrator records” in his reasons at [10].[52] There is no reasoned argument put, that the result would be different, depending on whether the letter is admitted. The Bank does not submit that this is the case. The second threshold test in s 352(6) is not satisfied. The Bank’s application to rely on fresh evidence pursuant to s 352(6) of the 1998 Act is refused.

Consideration

[52] Bank’s submissions on transcript, [12].

Some Authorities

The Commission’s ‘Policies’ include a policy for ‘Sound Recording and Transcription of Commission Proceedings’, issued by the Registrar, dated 6 December 2011. The Policy provides for sound recording of arbitral proceedings:
“If the parties fail to resolve the dispute during the conciliation phase, the matter will proceed to arbitration. Arbitration involves a formal hearing and proceedings are sound recorded.”
The Policy further provides:
“The Commission transcribes all sound recordings of arbitration hearings where an appeal against an Arbitrator’s decision has been made to a Presidential member.”
Paterson was a matter in which a transcript of the arbitration hearing was unavailable. A Deputy President conducted a ‘review’ of the Arbitrator’s decision, under s 352 of the 1998 Act in its form at the time. The employer, on appeal, argued that it had been prejudiced by the lack of a transcript. Giles JA (Hodgson JA and Brownie AJA agreeing) said:
“Absence of transcript is not a passport to a new trial, or the equivalent of a fresh arbitration in the present case, even if, as appears to have been the case, all concerned thought that the transcript would be forthcoming if necessary. Sometimes the lack of transcript can be accommodated by evidence as to what was said, which may have been possible in the present case: it was not suggested to the Deputy President that it was not. I will assume, without deciding, that the Deputy President had a discretion, but if so it comes down to whether the Deputy President considered that she could properly carry out her task in the absence of the transcript. She considered that she could, and I do not think that it has been shown that her view was not open to her, or that it would work such an injustice on the employer that the only proper exercise of discretion could have been to send the matter back for a fresh arbitration. I am not persuaded that any error in the exercise of the assumed discretion has been shown.”[53]
[53] Paterson, [44].
Similarly, in Zheng, there was no sound recording or transcript of the arbitration hearing. After referring to the Commission’s policy on sound recording, Bryson JA (Handley JA and Bell J agreeing) said:
“In the present case, for reasons which were not explained, there was no compact disc or sound recording of the Arbitration hearing and the evidence given there. This is a serious shortcoming, because it greatly impedes the right of appeal and the due exercise of powers of the Presidential member under s.352; and also impedes the conduct of a further appeal under s.353. According to circumstances, the absence of a sound recording could fairly readily lead a Presidential member to a decision to require a rehearing; although that result would not be automatic.”[54]
[54] Zheng, [32].
His Honour noted that, in that case, the absence of a transcript was overcome by “acceptance of [a] narration made by the solicitor who appeared at the Arbitration hearing for the employer”.[55] Bryson JA dealt with the circumstances of that case, saying:
“In theory it may be possible for the Deputy President, in the course of a review, to take evidence about what took place before the Arbitrator; except in disputes of the simplest kind, this is unlikely to be appropriate. The practice requiring a record of proceedings before Arbitrators to be made and kept is of high importance for the effectuality of proceedings on review, and the fact that no record was available and no explanation was forthcoming seems very unfortunate. It does not appear to me however that the Deputy President was in error in deciding to accept the employer's solicitor’s narration where the narration was not disputed.”[56]
[55] Zheng, [33].
[56] Zheng, [34].
There have been a number of Presidential appeals where missing or inadequate transcript has been an issue. Ms Tran’s submissions refer to two of these. In Veljanoski there was no transcript of either the arbitration hearing or the Arbitrator’s ex tempore reasons for his decision. O’Grady DP described the lack of transcribed reasons as a “constructive failure to provide reasons”.[57] He additionally said that he was “unable to ascertain the precise manner in which Mr Veljanoski presented his claim before the Arbitrator”.[58] The Deputy President remitted the matter for re-determination.
[57] Veljanoski, [21].
[58] Veljanoski, [20].
In Johnston there was no transcript of the arbitration hearing, although the Arbitrator’s written reasons for decision were available. O’Grady DP said that there was “no certainty as to what arguments were raised by the parties”,[59] on issues of the entitlement to weekly compensation and medical expenses, which were disputed. These issues were remitted for re-determination.
[59] Johnston, [20].
The President Judge Keating, in IF & LM Smith v Barrass,[60] reviewed a number of Presidential decisions dealing with absent transcripts. His Honour, in the circumstances of that matter, decided that he had sufficient evidence to review the Arbitrator’s decision, in the absence of transcript.
[60] [2008] NSWWCCPD 143.
McKay v Hyrock Pty Limited[61] involved, in part, suggestions that procedural fairness had been denied, based on circumstances in the running of the arbitration hearing. O’Grady DP said that, in the absence of transcript of the hearing, “assertions in argument cannot be scrutinised with reference to the manner in which argument was advanced at the hearing”.[62] The Deputy President concluded that the Arbitrator had failed in her duty to make a record of the proceedings, and remitted it for re-determination.
[61] [2011] NSWWCCPD 26 (McKay).
[62] McKay, [26].

The Circumstances of the Current Matter

The transcript of the arbitration hearing is littered with passages that are described as “not transcribable”, typically on multiple occasions on each page. It is frequently impossible to follow the submissions of the parties. For much of the transcript the person speaking from time to time is simply described as “SPEAKER”, and it is not possible to identify what was said by whom. The Commission file includes a “screenprint” dated 11 August 2017, from “Legal Transcripts”, which apparently accompanied the transcript of the arbitration hearing when it was furnished to the Commission. It described the sound quality of the recording as “extremely poor”. It said that “3 separate transcriptionists and QA people” had gone through the transcript, and that “[n]eedless to say we have done our best”. It described the recording:
“… there is background static, cutting out of voices, and some areas where it appears speakers were either not speaking into the mic or there was a fault with the mic and equipment because the speech cannot be accurately deciphered at all.”
Ms Tran’s solicitor, at the telephone conference on 17 January 2018, described the transcript as “just a dog’s breakfast”.[63] The Bank’s submissions dealing with the transcript do not (quite properly) seek to argue that the transcript is adequate.
[63] T2 7.21.
The parties were requested, at the telephone conference on 17 January 2018, to explore whether agreement could be reached regarding the submissions made at the arbitration hearing, going to specified issues.[64] The Commission was subsequently advised that agreement could be reached on none of these.[65]
[64] See [28]–[29] above.
[65] See [30] above.
The Bank submits that it may be possible to admit into evidence the handwritten notes of the Arbitrator. There are no such notes on the Commission’s file.
There is an issue regarding the basis on which Ms Tran’s case on ‘injury’ was run at the arbitration hearing. The Application pleaded a date of injury of 2 June 2016. On the evidence, Ms Tran was not at work on 2 June 2016. The date was inconsistent with representing a ‘frank incident’, yet bore little resemblance to an appropriate deemed date pursuant to the ‘disease’ provisions either.
The Arbitrator’s reasons described the Application as having been amended at the arbitration hearing, to plead a date of injury of 26 May 2016. The reasons also stated that “ensuing discussion made it clear that the date of 26 May 2016 was relied on as being the date of a personal injury as defined under s 4(a) of the 1987 Act, commonly referred to as a ‘frank injury’.”[66] 26 May 2016 would potentially have been consistent with a deemed date of injury pursuant to the ‘disease’ provisions, as it was the date Ms Tran ceased carrying out duties with the Bank: ss 15(1)(a)(i) and 16(1)(a)(i) of the 1987 Act. However, it was also the date when Ms Tran stated that she received an email from her supervisor, Ms Hatagami, which upset her.[67] The Arbitrator approached the ‘injury’ issue on the basis that receipt of this email, and its effect, was the ‘frank injury’ on which Ms Tran relied. [68]
[66] Decision, [11].
[67] Ms Tran’s statement, [24].
[68] Decision, [78]–[84].

The Arbitrator’s reasons referred to a submission by the Bank’s counsel, that “the application must fail because the evidence was weak in any event as to establishing that [Ms Tran] suffered a psychological injury on 26 May 2016.”[69] The Arbitrator said “I agree that the pleaded injury date of 26 May 2016 makes [Ms Tran’s] case untenable.”[70] This was consistent with approaching the alleged injury on 26 May 2016 as a frank injury, rather than one deemed pursuant to ss 15 or 16.
[69] Decision, [83].
[70] Decision, [84].
Ms Tran does not accept that her case was based on the occurrence of a ‘frank injury’ on 26 May 2016. At the telephone conference on 17 January 2018, Ms Tran’s solicitor was asked whether he accepted that the amendment at the hearing was “for the purpose of pleading 26 May ’16 as a frank incident as opposed to relying on the disease provisions”. Mr Chipchase responded:
“MR CHIPCHASE: I certainly don’t agree with that. I’ve been in charge of the case from day one apart from the actual arbitration where Bill Carney was briefed but it was always a deemed injury case and frankly I can’t understand how this question of turning the matter from a deemed date to a frank injury date at the actual arbitration occurred. I think it’s been a misunderstanding. It was always – the case was always a deemed injury date.”[71]
[71] T2 3.1–15.
The imperfect transcript is consistent with an amendment to plead 26 May 2016 as the date of injury. There is a reference in that passage to “the interpretation of s 16”,[72] but the passage overall does not assist on whether the injury was based on a ‘frank incident’ or the ‘disease’ provisions. It is a point on which the parties were unable to agree.[73]
[72] T1 5.10–13.
[73] See [30] above.
There is a passage of the transcript of the arbitration hearing, which includes reference (by Ms Tran’s counsel) to the Bank having conceded injury on 15 March 2016 (this appears to be a reference to the s 74 notices).[74] There is a passage[75] which includes reference to “disease” and “deemed date of injury”, and to an application by the appellant’s counsel to “put the words ‘deemed date of injury’”[76]. Ms Tran’s counsel said “It was always on the basis of a deemed date, and nothing else” (Mr Chipchase referred to this passage at the telephone conference).[77] The transcript needs to be treated with great caution. These passages are potentially consistent with argument going to whether or not the case was presented as one based on the ‘disease’ provisions. An unidentified speaker, I infer the Bank’s counsel, said “my friend now wants to completely recast his case”.[78] A following passage reads:
[74] T1 58.26–60.2
[75] T1 58.33–62.33
[76] T1 63.30–2.
[77] T2 7.18–20, referring to T1 64.25–6.
[78] T1 64.13–4.
“ARBITRATOR: Either a frank injury or a deemed date.

SPEAKER: ..(Not transcribable 1.51.07).. it’d be the date of deemed injury is what I said.

ARBITRATOR: Well you haven’t; you have now.

SPEAKER: Well I thought I said it before.

ARBITRATOR: That’s what I remember, the transcript will show anyway. However, I’ll consider that application and I shall reserve.”[79]

[79] T1 64.34–65.11.

It is apparent from these passages that there was discussion going to the possible application of the ‘disease’ provisions, an assertion by Ms Tran’s counsel that the matter had always been pursued on the basis of the ‘disease’ provisions, an assertion by (probably) the Bank’s counsel that to raise the ‘disease’ provisions at that point would involve Ms Tran recasting her case, and an indication from (probably) Ms Tran’s counsel that he thought he had previously said that he was relying on a deemed date (consistent with the ‘disease’ provisions).
The Bank submits that there is “NO reason why the Presidential Member should doubt the record of the Arbitrator in paragraphs [9] to [11] of the Statement of Reasons”.[80] There is an issue between the parties, regarding whether Ms Tran ran her case in the way described in the reasons at [11]. Whilst the transcript of the arbitration hearing needs to be treated with caution, the above references at least cast doubt on the statement, in the reasons for decision, that discussion “made it clear” that 26 May 2016 was relied on as the date of a frank injury.[81] The Arbitrator indicated that the transcript would indicate the basis on which the case was conducted. Unfortunately, the transcript did nothing of the sort.
[80] Bank’s submissions on transcript, [7]. The decision at [11] is quoted, in part, at [61] above.
[81] See [61] above.
Ms Tran’s first ground of appeal is that the Arbitrator erred, in not finding a date of injury. Ms Tran submits it was open to the Arbitrator to find a date of injury different to that pleaded. The s 74 notice admitted the occurrence of injury. She submits that the evidence (medical and lay) concerned a course of conduct, and the date of injury did not change the presentation of the evidence. Date of injury, Ms Tran submits, was not a significant issue.
Ms Tran’s submissions cite Inghams Enterprises Pty Ltd v Thoroughgood.[82] There are passages in Thoroughgood that refer to the potential for an arbitrator to find an alternative deemed date of injury in a ‘disease’ case.[83] The Commission is not bound by strict pleadings, and the Commission has “a statutory duty to act according to equity, good conscience and the substantial merits of the case (s 354(3) of the 1998 Act)”.[84] A party is entitled to notice of the case it has to meet.[85] It is not possible, given the state of the transcript, to properly consider whether Ms Tran argued her case on the basis of the ‘disease’ provisions of the 1987 Act, nor to properly consider whether Ms Tran sufficiently identified, in her submissions, potential reliance on a deemed date of injury other than the date of 26 May 2016. The parties have been unable to agree on how this (and other) issues were presented at the arbitration hearing. Without concluding that it would have been an appropriate course, I note that handwritten notes from the Arbitrator are not available to assist. It is not appropriate to simply accept the factual basis of the Arbitrator’s reasons at [10]–[11], regarding how the injury was pleaded and run. There is a factual issue between the parties on this point, which cannot be properly resolved, in the absence of a reliable transcript.
[82] [2013] NSWWCCPD 29 (Thoroughgood).
[83] Thoroughgood, [74]–[77].
[84] Thoroughgood, [77].
[85] South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; 4 DDCR 421, [90], Far West Area Health Service v Radford [2003] NSWWCCPD 10, [34].
Whether there was error on the Arbitrator’s part, in dealing with the ‘injury’ issue, was fundamental to the outcome of the appeal. I have formed the view that, in all of the circumstances, I cannot properly carry out the task of dealing with the appeal, given the deficiencies in the transcript of the arbitration hearing. The absence of reliable transcript also affects the other grounds raised, as it is not possible to reliably identify the submissions made by the parties dealing with the issues pursuant to s 11A(1) of the 1987 Act.[86]
[86] Veljanoski, [20], Johnston, [21].

DECISION

The Certificate of Determination dated 13 September 2017 is revoked.
The matter is remitted for re-determination by another Arbitrator.

Michael Snell

Deputy President

8 February 2018