Welch v Paul Mitchell
[2007] NSWWCCPD 66
•27 February 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Welch v Paul Mitchell [2007] NSWWCCPD 66
APPELLANT: Wayne Welch
RESPONDENT: Paul Mitchell
INSURER: QBE Workers Compensation (NSW) Limited
FILE NUMBER: WCC9000-06
DATE OF ARBITRATOR’S DECISION: 22 September 2006
DATE OF APPEAL DECISION: 27 February 2007
SUBJECT MATTER OF DECISION: Adequacy of evidence to support a finding of “worker” under section 4 of the Workplace Injury Management and Workers Compensation Act 1998; the role of an Arbitrator; application of the principles in Jones v Dunkel (1959) 101 CLR 298.
PRESIDENTIAL MEMBER: Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION: Appellant: Kingston Swift, Solicitors
Respondent: Steven T Parrott Solicitor
ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 22 September 2006 is confirmed.
2. No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
Wayne Welch (‘the Appellant’) claimed that he was employed by Paul Mitchell (‘the Respondent’) on a casual basis as a cook/deckhand on various boats owned by the Respondent.
The Appellant claimed that on 17 December 2004, he was working on the Respondent’s boat, the Black Pearl. As the boat was coming back into port, the Appellant attempted to place the spring rope over the bollard and in doing so, caught his right ring finger between the rope and the bollard, suffering injury to that finger.
At the time of this incident, the Appellant was also employed on a part time basis by CBK Pty Limited trading as the Sea Breeze Hotel as a chef.
On 15 June 2006 the Appellant filed an ‘Application to Resolve a Dispute’ in the Commission seeking weekly benefits compensation for the period 18 December 2004 to 27 January 2005, and medical, hospital or related expenses pursuant to the provisions of the Workers Compensation Act 1987 (‘the 1987 Act’).
On 4 September 2006 the Respondent filed a ‘Reply’. The issues in dispute identified by the Respondent were as follows:
·“No evidence of employer/employee relationship.
·Applicant was on vessel under contract of carriage for recreational purposes.
·Applicant paid for carriage along with other passengers as per contract.
·Applicant has never been employed either on wages or contract by Respondent.”
The parties attended a conciliation/arbitration hearing on 8 September 2006. Both the Appellant and Respondent gave oral evidence at that hearing.
On 22 September 2006 a ‘Certificate of Determination’ with an accompanying ‘Statement of Reasons’ was issued. The decision of the Arbitrator was as follows:
“1. Award for the Respondent.
2. No order as to costs.”
On 10 October 2006 the Appellant filed an ‘Application to Appeal Against Decision of an Arbitrator’. Supplementary submissions were made by the Appellant on 23 October 2006, 22 November 2006 and 12 January 2007.
The focus of the Appellant’s submissions on appeal is paragraph 28 of the Arbitrator’s ‘Statement of Reasons’ wherein he stated as follows:
“This left it to the Arbitrator to raise the issue of the receipt allegedly issued by the Respondent to the Applicant, and the Applicant’s alleged prior employment with the Respondent. Even after these issues were raised, neither advocate sought to further explore them. As it is not appropriate for an Arbitrator to cross examine parties or witnesses, the evaluation of these disputed but crucial pieces of evidence was unable to be effectively undertaken.”
The Appellant submits that the Arbitrator was incorrect, and the transcript demonstrated that there was in fact cross examination on these issues. In addition, the Appellant submits that the Arbitrator erred in holding that it was not appropriate for him to cross examine the parties or witnesses since the Arbitrator “… was required to play an inquisitorial role in resolving the dispute.”
The second ground of appeal raised by the Appellant is that the Arbitrator failed to draw an adverse inference pursuant to the principles enunciated in Jones v Dunkel (1959) 101 CLR 298 (‘Jones v Dunkel’) with respect to the Respondent’s failure to call a witness being the captain of the Black Pearl.
On 3 November 2006 the Respondent filed a ‘Notice of Opposition to Appeal’. Briefly, the Respondent submits that the Arbitrator gave both parties an opportunity to cross examine the witnesses and that the Appellant’s solicitor’s cross examination was essentially ineffective, and that secondly, there was no error by the Arbitrator in relation to the Jones v Dunkel issue.
LEAVE TO APPEAL
Before proceeding to deal with an appeal, the Commission must determine whether the Application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The appeal was filed in time, and the amount at issue on appeal satisfies the criteria set out in section 352(2) of the 1998 Act.
Leave to appeal is granted.
ON THE PAPERS REVIEW
Section 354(6) of the 1998 Act provides:
“(6) 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 without holding any conference or formal hearing.”
No party seeks to adduce fresh evidence. Both parties submit that the matter is suitable for a determination ‘on the papers’.
Having regard to Practice Directions numbers 1 and 6, the documents that are before me, including the transcript, together with both parties’ submissions on appeal, 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.
THE ISSUES IN DISPUTE
The Arbitrator entered an award in favour of the Respondent on the basis that he was not satisfied that the Appellant had demonstrated that he was a worker employed by the Respondent.
“Worker” is defined in section 4 of the 1998 Act as follows:
“worker means a person who has entered into or works under a contract of service or a training contract with an employer (… whether the contract is expressed or implied, and whether the contract is oral or in writing)”.
The Arbitrator concluded at paragraph 31 of his ‘Statement of Reasons’ as follows:
“Considering all of the material before me, the impression that I have arrived at is that the informal relationship between the parties on 17 December 2004 was not that of employer and employee, even though the Applicant may have viewed it as such. The fact that the Applicant proved [sic] some limited assistance to the Respondent in helping look after the passengers on the vessel and helping with the mooring of the vessel, is not sufficient, in my view, to elevate a loose informal arrangement to the status of employment.”
THE EVIDENCE BEFORE THE ARBITRATOR
The issues on appeal essentially focus on the adequacy of evidence as to “worker”. There was no real dispute between the parties that the Appellant was injured in the manner alleged, that he required medical treatment, and that he was absent from work for a period of approximately 7 weeks.
In this context, it is important to consider the evidence before the Arbitrator.
Documents annexed to the Appellant’s ‘Application to Resolve a Dispute’ were principally medical accounts and reports, financial records and a statement from the Appellant dated 10 May 2006. Relevant portions of that statement are as follows:
“1. I first met the Respondent Paul Mitchell approximately three years ago when he was introduced to me by Tim Osborne who was the captain of a boat owned by Mr Mitchell.
2. I was a keen fisherman having fished off boats for many years. Mr Mitchell was as a result of our discussions aware of this and also that I was a chef. He said to me words to the effect: ‘Would you be interested in working for me as a deckhand?’
3. I accepted Mr Mitchell’s offer and commenced working for him on a casual basis. I worked on average once a month during the winter months and approximately three times per week during the summer. My duties included:
(a) making lunches for up to 25 passengers;
(b) lifting the anchor;
(c) showing passengers how to fish, preparing their bait, putting their bait on the hook, cleaning the fish, untying knots in fishing lines;
(d) assisting with mooring the boat and cleaning the boat at the end of each charter;
(e) carrying fishing gear on and off the boat.
4. Most of these charters would last eight hours but some would last up to 16 hours.
5. Usually at the end of the trip, Mr Mitchell would give me $100.00 in cash. Sometimes, if the passengers did not require much assistance and I had time to fish, he would pay me $50.00 and sometimes I would not receive any payment. I was happy with this arrangement.
6. On 17 December 2004, I was working on Mr Mitchell’s boat, the Black Pearl. The boat was coming back into port and I went to grab the spring rope and place it over the bollard. As I did so, I caught my right ring finger between the rope and the bollard, suffering injury to that finger.”
In his ‘Reply’ filed on 4 September 2006, the Respondent included a statement he made on 12 September 2005. The relevant portions of that statement are as follows:
“1. I first met the Applicant, Wayne Welch, about five years ago. He was a friend of Tim Osborn [sic] who was the master of a boat owned by myself.
This boat was called ‘Dr Hook’ and I sold it in or around November 2002.
2. I have never had any formal association with Mr Wayne Welch …
3.Mr Welch appeared to be friendly with many boat owners and to the best of my understanding, was either invited or allowed to accompany them on trips, some of which included fishing trips, but apart from that I know no detail of any arrangement that he had with any particular owner.
4. On the occasions that Mr Welch was on board the Dr Hook, which had a passenger limit of 10 passengers at any one time, Mr Welch was never asked to carry out any duties. Mr Welch was originally a paying passenger, but after some time would only offer on many occasions to ‘lend a hand’ in return for being allowed to fish from the vessel.
5. On no occasion did I ever make an arrangement with Mr Wayne Welch to (a) pay him wages, (b) pay him contract payments or (c) provide work experience for him.
6. There has never been an employee/employer relationship between Mr Welch and myself, nor has there been a contractual relationship between Mr Welch and myself, apart from Mr Welch being considered a paying passenger along with other paying passengers.
7. The only time Mr Welch was ever given money, it would be an informal arrangement for him to purchase some food and liquor for the crew and myself after we had docked and washed down. At no stage were these payments ever intended to be remuneration for work or services performed.
8. I did not see Mr Welch from November 2002 until November 2004 when Mr Welch approached me with a view to going out fishing on a new vessel I had purchased in July 2004, the ‘Black Pear’”. Mr Welch was accepted as a paying passenger for the sum of $50.00. Annexed hereto and marked with the letter ‘A’ is a true copy of the invoice/ receipt that was issued to Mr Welch. I offered the receipt to Mr Welch before the trip but he said to me the words ‘Don’t worry about a receipt’.
9. This was the only time that Mr Welch was ever on the vessel the ‘Black Pearl’ since I purchased it.
10.On no occasion did I ever make an arrangement with Mr Wayne Welch to (a) pay him wages (b) pay him contract payments or (c) provide work experience for him on the ‘Black Pearl’”.
This was the evidence before the Arbitrator on the issue of ‘worker’. The statements of the Appellant and the Respondent were, quite simply, diametrically opposed.
At the hearing before the Arbitrator on 8 September 2006, the Arbitrator enquired of the Appellant’s solicitor whether he proposed to “… ask him any questions or is he just going to be asked questions by the insurer’s solicitor?” The Appellant’s solicitor confirmed the latter proposal. The Appellant was then cross examined by the solicitor for the Respondent, at pages 1 to 18 of the transcript.
The Appellant’s solicitor declined the Arbitrator’s offer of re-examination.
The Respondent’s solicitor tendered the Respondent’s statement and declined to ask any questions of the Respondent. The Appellant’s solicitor then cross examined the Respondent, contained at pages 19 to 26 of the transcript.
A brief summary of the Appellant’s cross examination is as follows:
“(P3)
Q. And what do you say your job was?
A.Baiting up hooks, cutting up the bait, cleaning fish, getting people’s lunches ready, getting people’s drinks.
Q. … How many times you were ever on the Black Pearl?
A. That was the fist.
(P4)
Q.Is it true or not true that on that day … on the boat you hadn’t been on a boat with Mr Mitchell for at least two years?
A. Paul – that was the first time … it was just that time on his new boat.
(P5)
Q.If I was to suggest a time period to you, I would suggest a period of two years since he sold the Dr Hook to this alleged incident. Is that correct?
A. No I don’t think it would have been two years.
Q. You would give it a year?
A. Yep.
Q.So when you were on Mr Mitchell’s boat in particular or on his boats generally, you stated here that you made lunch for up to 25 passengers. Was that on every …
A. No, no.
Q. So what determined whether or not you made lunch?
A.You make lunch every day because Paul’s wife used to actually get the preparation done for you, the mise en place, and then we would take it all on board in eskies … even though I am a chef by trade, and she used to cut up everything …
Q. So in actual fact Paul’s wife made the lunches?
A. No, the mise en place. When you get food ready it’s a team effort.
(P6)
Q.You state that you lifted anchor. On how many occasions would you do that?
A.It just depends how good your fishing day was or how the current was going …
Q.What you were being asked was that you have said in your statement you were lifting the anchor … how many times overall when you say you had been working for Mr Mitchell on his boats you did that?
A. At least one hundred, over one hundred.
Q. Were you the only one that would lift anchor?
A. No.
(P7)
Q.You say that on Mr Mitchell’s vessel you assisted with mooring the boat and cleaning the boat at the end of each charter?
A. Yep.
Q. So who else did that with you?
A. Well, Tim, and Paul … he would always throw a rope.
Q.And when it says you were carrying fishing gear on and off the boat, whose gear?
A.Probably Paul’s mainly. A couple of rods would have been Timmy Osborn’s. Some could have been borrowed … if one hasn’t got rods, they all help each other out.
Q. Everyone helps each other out.
A. I have helped with some rods.
(P8)
Q. On this day did you show passengers how to fish?
A. Yes.
Q. How many of them.
A. There was between 12 and 15 of them that day.
Q. And who told you to help them fish?
A.Well, Paul picked me up that morning to go help him do the deckhand that day. Well, I am not a deckhand because I am not licensed.
Q. Yeah, but who told you specifically to help the guys fish?
A. Well, I was there to do a job that day.
Q. Yeah but that’s the deckhand job; that’s not a fishing job. Who told you?
A.Dave Dawson [the captain of the boat] did then, and Paul would have gave [sic] me instructions that morning too, like he does … how the sandwiches, what’s in the sandwiches, what sort of cake we’ve got.
Q.Who told you to help the blokes on the boat … to fish. Who gave you that instruction?
A.It would have to have been Dave Dawson, but Paul might have said something that morning too.
(P9)
Q.Who told you to assess the passengers as to whether they could fish or not and who needed assistance.
A. I just thought it was in the job description.
Q. Did anyone ever give you a job description?
A. I think Paul might have on the first trip about three years ago.
Q. Might have three years ago?
A.Well, it would have been Paul, or Tim would have told me what to do. It’s their boat. They tell me what goes on …
(P10)
Q. So who told you to assist with mooring the boat?
A. Dave Dawson.
Q.Now you say at the end of the trip ‘usually at the end of the trip Mr Mitchell would pay me $100.00’. Did he pay you on this occasion?
A.No. The reason why is because as I jumped off the back of the boat I still hadn’t finished cleaning the boat to get me wage, and I was still cleaning the boat … so my finger got cut off before I got paid.
Q. And you have been on lots of boats as a fisherman?
A.Paul has given me a chance mainly on Paul’s boats or Paul’s friend’s boats that I meet through Tim and that, and they’ve got boats, and its sort of if you fish good on one boat, you’re a nice bloke, you can go fishing on the next boat ...
(P11)
Q.So on this occasion, you hadn’t been anywhere near Mr Mitchell’s boats for over a year, roughly?
A. Yeah about that.
Q.And you say that usually at the end of the trip he would pay you a $100.00 bucks?
A. Yep.
Q. Alright. Did he promise to pay you on this trip?
A.He shouldn’t have to make a promise. He shook my hand three years ago when we – a handshake. Like, we always used to do that. Like, if it was a good day he would pay me. If we would only take four customers out … I wouldn’t ask Paul Mitchell for $100.00 when he is only making $400.00.
Q.Your only understanding of what you were to receive in the way of payment was based on something three years ago.?
A. Yep.
Q. On a different vessel?
A.Well I think Paul Mitchell actually – the day before that we went out on a fishing trip … come and seen me at my work and asked me if I would like to come and ‘give him a hand tomorrow’, and I actually took … a sick day off at work and chopped me blooming finger off.
(P12)
Q.You are a member of a fishing community or a fishing – a group of people who know each other who have a common interest in fishing. Right?
A. Yep.
Q. The main connection between you and the dominant, if you like, connection is your love of fishing? You don’t necessarily socialise together, do you?
A. No.
(P13)
Q. Fishing is the main criteria that gets you all together when you get together isn’t it?
A. No, I love money too … I love my $100.00 … I work for my money, and I work hard.
(P15)
Q. On this occasion it was essentially a social occasion for the fishing?
A. No.
Q. What you are saying is on this occasion Mr Mitchell didn’t offer you any specific money did he? He didn’t name a figure … ?
A. He might have the day before when he come and asked me if I’d like to go on the charter.
Q. Did Mr Mitchell … offer you a specific sum of money to go with him that day?
A. The day before when he came into the restaurant, he sat in the restaurant. He probably had lunch, I think [Mr Mitchell interposed ‘it was dinner’]. It was ‘ dinner, … no I don’t think he said a figure at all … I thought it would have been just the same money as what I got on the little boats. Just because it is three times as big I didn’t expect three times more.
Q. Who initiated the conversation?
A.… he sort of told me about this new boat and asked me if I’d like to go out there ‘on a charter tomorrow’ …
(P16)
Q.I put it to you that on that occasion he mentioned he had a new boat and you asked him if you could go out with him.
A.No, Paul asked me because that’s why I took the day off work. I wouldn’t have just said to Paul ‘I’ll come fishing with you for nothing [sic] pay and not go to work’.
Q. I put it to you that you actually paid him to go out on the boat.
A. No.
Q. And I put it to you that he offered you a receipt in the sum of $50.00.
A.Paul never even gave receipts to customers let alone – I’ve never seen a receipt … and even if I went fishing out on Paul’s boat, he wouldn’t charge me anyway.
Q. Why not?
A, He just wouldn’t.
Q. Why not?
A. That’s the type of bloke he is sir.
Q.Well I put it to you that he wouldn’t charge you because you have a commonality of interest, which is fishing … it was all about fishing; it wasn’t about work. That’s what I’m putting to you.
A. Yeah it’s work for Paul. Yes, it is. Paul is a very hard worker.
Q.But why? You just said that Paul wouldn’t charge if you wanted to go fishing?
A.Because I’ve worked for Paul, done shifts for him all those times. Paul wouldn’t – he never charged me a cent.
Q.That’s right. Because it’s a social arrangement, isn’t it, between you and Paul?
A. No because I worked for that. Instead of giving me money, he let me take his boat.”
At page 17 of the transcript the Arbitrator asked the Appellant if he had seen the statement that the Respondent had given in the proceedings. The Appellant agreed. The Arbitrator then directed the Appellant’s attention to the annexure to the statement stating as follows: “Now, that appears to be a receipt made out to you on the day this event occurred. I think it is $50.00 … on the date 17 December 04.” The Appellant replied: “He never – no one ever got them.” This exchange then took place between the Arbitrator and the Appellant:
“Q.Are you saying you never paid $50.00?
A.No.
Q.Had you ever paid Mr Mitchell or … ?
A.Before
Q.Anyone who was running his boats?
A.No. I paid for petrol when I used the boats.”
The Appellant’s solicitor commenced cross examination of the Respondent at page 19 of the transcript. The Respondent agreed with questions to the effect that he always ensured that he had sufficient crew “… to do all the necessary jobs required from time to time.” Relevant portions of the Respondent’s evidence under cross examination are as follows:
(P20)
Q.And I take it that you do … provide some form of lunch or refreshment to the passengers whilst they’re on board.
A.No, what we do, we have it in Tupperware containers, buy fresh rolls in the morning, put it out and they make their own.
Q.And one of the things … as part of the job of getting the people back to shore is to moor the boat on to the jetty.
A.Mm –mm.
Q.And that can be a dangerous undertaking?
A.In certain conditions it could be yeah.
(P21)
Q.… that’s a procedure which the crew are involved in isn’t it?
A.Yeah.
Q.It’s not something that you would get a paying passenger to do.
A.Some people just do it trying to help. I don’t let them tie anything. I don’t let them tie around bollards.
Q.So the accident occurred whilst he was trying to put a rope around a bollard.
A.Yeah.
Q.And that would normally be a job that you would get a crew member to do, not a paying customer?
A.Generally, yeah, the crew would do it… like I said, a lot of times down there someone is already holding the rope for you and passes it to you, just drops it on. It’s not like you’ve got to tie it.
Q.But in this particular case … Mr Welch had stepped off the boat onto the dock, hadn’t he?
A.Yes and the boat was at a standstill.
(P22)
Q.That sort of operation is not one which you would normally expect a paying passenger to undertake would you?
A.Oh, I don’t know if you know the sort of people that go on the boats, you know. I wouldn’t expect anyone to do it that didn’t have any knowledge of boats.
Q.But you don’t know what knowledge these people have at the time they come on board?
A.Well, you sort of get a bit of an idea on how they talk to you.
Q.… you can’t guarantee … that the procedure of putting the rope around the bollard is going to be a simple procedure can you?
A.It is a simple procedure.
Q.Well was it in this particular circumstance?
A.Well, I thought it was, yeah. There was no wind, there was no nothing. The boat was virtually at a standstill.
(P23)
Q.Apart from yourself, who else was on board the boat who was either a crew member or a skipper?
A.Dave Dawson and myself.
Q.Dawson.?
A.He’s the skipper.
Q.And I take it that he was aware that Mr Welch was not there in the capacity as an employee?
A.Well he just thought he was coming for a run, like, just thought he was – because he knew me.
Q.You heard your solicitor… put a number of times that the glue that bound you people together … was the fact that you liked to fish.
A.Mm – mm.
(P24)
Q. And one of the things that he put to Mr Welch was that you wouldn’t have charged him because you are all part of the fishing community and you all
help each other out. Is that correct?
A.Well, do you want to know about this occasion.
Q.No, you heard him make that submission didn’t you?
A.Yeah.
QSo on what basis … did you charge him on this occasion.?
A.Because the only reason he went on the other boats was because he knew the skipper. That’s how I first met him, through the skipper .. and on this occasion I was having dinner with me wife at the pub and Wayne said ‘How’s the new boat going?’. I said ‘We are going on a run on Thursday, … or Friday, whatever day it was’. He said ‘I wouldn’t mind coming for a run when we – because it’s getting busy for Christmas’. He said, ‘I won’t have time to have any time off, because he’s in the restaurant. So I said, ‘Well, come for a cheapy’. ‘
Q.So at what stage did you tell him you were going to charge him?
A.Basically that night I’d say.
Q.So on this particular occasion this community of fishing glue that exists wasn’t going to operate; you were going to charge him?
A.Yeah. Not full price.
Q. Why was that?
A.Well I’m never really happy with anyone coming for nothing.
Q.But you’d done it before?
A.Only when other people invited them.
Q.Well you’ve told your solicitor that there is … a glue that holds this community together, which is fishing, and you all help each other out.
A.Yeah. That’s not every occasion.
Q.So there are exceptions to it?
(P25)
Q.So it would be feasible then it would be an exception to Mr Welch’s … ?
AYou’ve got to remember I hadn’t seen Wayne for at least a year and a half before this.
Q.That’s right. And, so, he wouldn’t take a day off work to help on your boat, would he, for no pay?
A.No. He’d pay $50.00 bucks to come fishing though.
Q.He’d take a day off work?
A.Well, that’s what you do if you like fishing, yeah.
Q.Look, this receipt …
A.There was 14 people on there that paid to get on there.
(Arbitrator) (The transcript does not identify when the Arbitrator’s questions ceased)
Q. Sorry how much did they pay?
A.It would have been $110.00 I’d say … yeah $110.00 or $120.00.
Q,.Have you got this original receipt book of yours?
A.Oh I’d still have it there.
Q.You didn’t think to bring it here today?
A.No.
Q.You didn’t think that this receipt that you’d attached, that the authenticity of it might well be questioned?
A.Well its easy to check up.
Q.And you could have just made this whole receipt up couldn’t you.
(P26)
A.Well I suppose yeah.
Q.So if you’d brought the whole …
A.But what about all the other receipts in the book? Are they all made up?
Q.Well, that’s right if you’d have brought the book in we could have seen all those other receipts couldn’t we?
A.Yeah.
Q.But you didn’t do that?
A.No.
Q.And the reason you didn’t do that is because you’ve made this whole receipt up; it’s not a genuine receipt at all.
A.In your eyes, probably … I didn’t bring me tax return in, if you want to do that. It’s got all the cash receipts on it.
Q.But you didn’t, did you?
A.Well, it’s not far away. Every cent I get goes in the bank, because I have to.”
That concluded the cross examination of the Respondent. The only question in re-examination was “is the boat cheap or expensive to run?” to which the Respondent replied “expensive.”
The Arbitrator then asked the following questions:
“Q.So how did you pay Mr Welch on the occasions that he’d been on your boats before? Have you physically paid him?
A.No.
Q.Never?
A.Oh, at the end of the day we might go and buy some beer or something.
Q.But not a matter of cash for him?
A.No.”
The Arbitrator asked if anything arose out of that exchange to which the parties replied: “No.” The parties then proceeded to make submissions, and the Arbitrator reserved his decision.
The Arbitrator’s Determination
The Arbitrator’s findings and reasons commence at paragraph 18 of his ‘Statement of Reasons’. He made the following comments:
“18.Although I agree with the Applicant’s solicitor that the Applicant was a truthful witness I also find that the Respondent was a truthful witness … There is no doubt that the relationship between the Applicant and the Respondent had a significant social dimension and hence it was readily understandable that each would have difficulty in precisely remembering the circumstances which the legal representatives hoped would provide neat and compelling instances which conclusively establish that the parties’ relationship was, or was not, that of employer or employee.
19.In some instances, I find the Respondent’s recollection of events to be more accurate. When the Applicant was endeavouring to recollect how he came to be on the Respondent’s boat on 17 December 2004, his memory was that this was mentioned when the Respondent … had come into this restaurant for lunch… The Respondent, during the Applicant’s evidence on this event, corrected the Applicant, saying that it had happened at dinner in the evening. This was not a provocative or challenging interruption – the Respondent was merely endeavouring to clarify exactly what happened. The Applicant accepted this to be the case without any hesitation. In addition, I prefer the Respondent’s description of the lunch being provided on the boat as being comprised of fresh rolls, food in Tupperware containers … it seems to me that the provision of lunch on the Respondent’s vessel did not require the assistance or supervision of a qualified chef.
20.I prefer the Applicant’s evidence of the prior arrangement between the parties and I find that it was more probable than not that he was paid occasionally by the Respondent for tasks that he performed. That prior arrangement however is not determinative of what the arrangement was on this occasion … The mere passing of time would not prevent the same relationship continuing or being revived. However, on 17 December 2004 were there events which altered the previous relationship, namely:
·The vessel in question was new and much larger than any of those in respect of which the Applicant had assistance the Respondent or his skipper before, and
·I accept the Respondent’s clear recollection of the conversation with the Applicant at dinner a day or so before 17 December 2004 that he invited the Applicant to ‘come along for a cheapy’.
21.The Respondent’s version of events amounts to a claim that he subsidised the Applicant’s trip … to the extent of something in the vicinity of $60.00 or $70.00 …
22.This leaves the question as to whether this subsidy, the foregoing of the full fare, is because the Respondent expected the Applicant to work as an employee.
23.The Applicant’s recollection of what he actually did on this particular occasion in the nature of employment is hazy. Also, even thought the Respondent was himself present on the boat, he was not giving directions, as these came from the skipper, Dave Dawson, who was the master of the vessel. Dawson was the employee of the Respondent. However in this context, the indicia of control as a determinative factor in establishing a contract of employment is negated by the Maritime Convention of the Master of the vessel being able to give orders to the owner (the Respondent) and to the Applicant, as well as anyone else on board.
24.I am not persuaded by the submissions from the Respondent’s solicitor that the existence of a ‘social glue’, namely a passion of fishing, is, of itself, sufficient to alter the character of the tasks that the Applicant alleges he did in the nature of employment, for the Respondent, namely:
·Assisting with lunches.
·Lifting anchor.
·Helping the passengers to prepare tackle and clean fish.
·Assisting in the mooring and cleaning of the boat.
25.In my view, in an appropriate case, a contract of employment can be found in respect of such services being provided, albeit in a social setting, and a social relation cannot if itself exclude or negate a contract or employment having been formed.
27.Crowe v Tumut Turf Club [1958] WCR (NSW) 50 establishes that if there is clear evidence that a worker intended to and in fact did offer services for reward, it is immaterial that the employer understood the offer to be one of gratuitous services, so long as it could be reasonably inferred from the evidence that the employer’s acceptance was on the basis that payment would be made for the work.
28.In the present case it may well be that the Applicant, on 17 December 2004, saw himself as an employee whose services for the Respondent involved assisting the other passengers on the boat. There is no doubt that mooring a vessel is an activity that would be performed by a deckhand. It is also an activity that is regularly performed by guests and persons other than employees who are just helping out because they have some experience in boating. That is, the activity is not of itself determinative of the relationship of an employer and employee. Neither of the legal representatives sought in cross examination, to challenge to any significant extent, the version of events that was contradictory to the version given by their client. This left it to the Arbitrator to raise the issue of the receipt allegedly issued by the Respondent with the Applicant, and the Applicant’s alleged prior employment with the Respondent. Even after these issues were raised, neither advocate sought to further explore them. As it is not appropriate for an Arbitrator to cross examine parties or witnesses, the evaluation of these disputed but crucial pieces of evidence was unable to be effectively undertaken.
29.The evidence is accordingly left in an equivocal state, and I find it impossible to find a clear intention spelt out from the available facts that the parties intended to enter into a legal relationship. That is, the ‘arrangement lacked the element mutuality of obligation which is essential for the formation of a contract: See Dietrich v Dare [1980] 54ALJR 388, in particular at 390’ (per Truss J in Birkett v Turbo Estate Co Pty Limited [1977] NSWCC 12 at page 3. Like Her Honour, I am not persuaded that the arrangement between the Applicant and the Respondent involved a clear and positive indication that legal relations were contemplated. To impose upon the Respondent a finding of employment because of:
·The reduction of the usual fare.
·Assisting other passengers as to their tackle.
·Some limited preparation of lunch.
·Assistance with the mooring.
without a clear meeting of the parties’ minds that a contact for
employment was being formed is artificial and overly legalistic in the
present circumstances.
30.As Clarke JA said in Vacik Distributors v Kelly (1995) 12 NSWWCCR ‘it is readily apparent that in informal arrangements .. the question of whether a person is a servant or not can be very much a matter of impression.’
31.Considering all of the material before me, the impression that I have arrived at is that the informal relationship between the parties on 17 December 2004 was not that of employer and employee, even though the Applicant may have viewed it as such. The fact that the Applicant proved [sic] some limited assistance to the Respondent in helping look after the passengers on the vessel and helping with the mooring of the vessel, is not sufficient, in my view, to elevate a loose informal arrangement to the status of employment.”
SUBMISSIONS, DISCUSSION AND FINDINGS
It is well established that the onus was on the Appellant to show that the contract relied on is one of employment. (See Harris v Cudgegong Sawing Pty Limited (1995) 11 NSWCCR 678).
In Stevens v Brodribb Sawmilling Co Pty Limited (1986) 160 CLR 16, the High Court held that the concept of the employment contract is undefined, and that the appropriate test is to balance the indicia in favour of an employment contract with those not in favour of that relationship. There are numerous authorities dealing with the various criteria or indicia which may go to establish an employment relationship, and I do not propose to consider those authorities at length. In short, the onus is on a worker to provide evidence of relevant criteria establishing an employment relationship.
In the present case, as the Arbitrator rightly pointed out, the evidence was “equivocal”. In my view, it was also scant. No evidence was brought by the Appellant by way of financial records or even corroborative lay evidence to establish the necessary “employment” relationship on the particular day in question, 17 December 2004. The Arbitrator accepted the Appellant’s evidence that such a relationship may have existed in the past, but it was common ground that it was at least one or two years since the Appellant had had any particular relationship with the Respondent.
Significantly, the parties’ recollection of the facts and circumstances surrounding the Appellant’s attendance on the Respondent’s boat on 17 December 2004 was, as I have said, diametrically opposed. The Appellant’s statement essentially addressed the initial basis of his claimed casual employment. On the day in question, he claimed that he was simply “… working on Mr Mitchell’s boat …” The Respondent in his statement claimed that the Appellant was “… accepted as a paying passenger for the sum of $50.00.” In oral evidence before the Arbitrator, the Respondent claimed that the Appellant asked him (the Respondent) if he could come out on his boat. The Appellant claimed that the Respondent asked him if he would like to go out on the boat “on a charter tomorrow”.
Thus, the Arbitrator was confronted with two different versions of events on 17 December 2004, with no corroborative evidence.
There were inconsistencies in the evidence given by both the Appellant and Respondent in cross examination. For example, in his statement, the Respondent claimed that he had charged the Appellant $50.00 to come out on his boat and issued a receipt. The receipt was attached to his statement. Curiously, at page 16 of the transcript, the solicitor for the Respondent put to the Appellant that the Respondent “… wouldn’t charge you because you have a commonality of interest, which is fishing …” Earlier, the Respondent’s solicitor put to the Appellant “I put it to you that you actually paid him to go out on the boat.”
No objection was taken to this inconsistency.
As to the receipt, it was a document properly before the Arbitrator, and purportedly, on the face of it, was a receipt in the sum of $50.00 received from the Appellant on 17 December 2004. The Respondent denied that he had “made it up”, and indicated that the receipt book was readily available. Neither party took the matter any further. The same might be said of the Respondent’s evidence that his tax return would also show “all the cash receipts on it”.
Having read the transcript, I concur with the Arbitrator’s statement that: “Neither of the legal representatives sought in cross examination, to challenge to any significant extent, the version of events that was contradictory to the version given by their client.” Both parties relied on their statements. Despite some urging from the Arbitrator, neither party elected to deal with the conflicting statements in evidence in chief or indeed sought to introduce any evidence that may have supported their respective positions.
The Appellant submits that “The Arbitrator was incorrect when he suggested that there was no cross examination on the issue of the receipt after the issue had been raised by him. There was cross examination on this issue as the transcript will show. The Arbitrator has failed to realise this, and therefore his decision has been made without consideration as to what the Arbitrator had otherwise correctly described as a crucial piece of evidence.”
The Appellant is correct insofar as there clearly was some cross examination on the receipt. In essence, that amounted to the Appellant’s suggestion to the Respondent that he had “made up” the receipt. The Appellant’s interpretation of the Arbitrator’s comments is in my view inaccurate. As I understand the Arbitrator, his concern was with the fact that the Appellant vigorously denied having paid the Respondent to go out on the boat, and the Respondent insisted that the Appellant had paid and, in effect, had a receipt to prove it. As the Arbitrator rightly pointed out, “ … neither advocate sought to further explore …” the inconsistencies raised.
In submissions before the Arbitrator, the Appellant’s solicitor said this: (Page 28 transcript)
“That receipt book, or that receipt, you would query it, you would want to see the original document to see all other receipts along with it, and, if you saw that, then perhaps you would be convinced that that was a genuine receipt.
There was another person on board. The skipper. He, of course, hasn’t provided a statement. He would have been in a position to provide a statement and you are in a position to draw the adverse inferences there.”
No attempt was made by either party to seek an adjournment, for even a short time, to enable the Respondent to produce the receipt book. In any event, no basis had been established by the Appellant’s solicitor for the Arbitrator to query the authenticity of the receipt other than the Appellant’s solicitor’s assertion to the Respondent, in cross examination, that he had “made up” the receipt.
In addition, in attempting to resolve the dispute between the parties, the Arbitrator’s task was not helped by the Respondent’s solicitor’s assertion, in cross examination, that the Respondent would not have charged the Appellant for going out on his boat, an assertion quite contrary to his client’s own statement
The Role of the Arbitrator
The Appellant, in submissions on appeal, has challenged the role of an Arbitrator in proceedings before the Commission. It is the Appellant’s contention that the Arbitrator’s role in the proceedings was inquisitorial and that he could and indeed should, have cross examined the witnesses.
The role of Arbitrators was considered recently by Deputy President Roche in Paul Segaert Pty Limited t/as Lidco v Narayan [2006] NSWWCCPD 296, principally in the context of procedural fairness. DP Roche considered the provisions that governed proceedings before the Commission stating as follows:
“In light of the above authorities it is appropriate to consider the provisions that govern proceedings before the Commission. They are set out in Chapter 7 of the 1998 Act and in section 354 which provides as follows:
“354 Procedure before Commission
(1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2) The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
(4) Proceedings need not be conducted by formal hearing and may be conducted by way of a conference between the parties, including a conference at which the parties (or some of them) participate by telephone, closed-circuit television or other means.
(5) Subject to any general directions of the President, the Commission may hold a conference with all relevant parties in attendance and with relevant experts in attendance, or a separate conference in private with any of them.
(6) 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 without holding any conference or formal hearing.
(7) An assessment or determination is to be made by the Commission having regard to such information as is conveniently available to the Commission, even if one or more of the parties to the assessment or determination proceedings does not co-operate or ceases to co-operate.
(8) In proceedings before a court with respect to a claim for work injury damages (other than proceedings under section 235A or 235C or under the Crimes Act 1900 with respect to fraud), evidence of a statement made in proceedings before the Commission is not admissible unless the person who made the statement agrees to the evidence being admitted.” (emphasis added).
63. Part 15 Rule 15.2 of the Workers Compensation Commission Rules 2006 (‘the Rules’) is also relevant. This Rule reproduces, in identical terms, Rules 70 of the Workers Compensation Commission Rules 2003. It provides:
“Principles of procedure
When informing itself on any matter, the Commission is to bear in mind the following principles:(a) evidence should be logical and probative,
(b) evidence should be relevant to the facts in issue and the issues in dispute,
(c) evidence based on speculation or unsubstantiated assumptions is unacceptable,
(d) unqualified opinions are unacceptable.”
64. In addition, the conduct of the Commission’s Arbitrators is governed by the “Arbitrators Code of Conduct” (‘the Code of Conduct’) issued by the President, Justice Sheehan, and the Registrar of the Commission, Ms Helen Walker. The Code of Conduct states the “Arbitrators Role” as follows:
“ARBITRATORS ROLE
2. The fundamental role of Arbitrators is to be impartial and independent in carrying out their role of attempting to bring the parties involved in a dispute to a settlement acceptable to all of them and, where this is not achieved, making a determination.”
65. Under “General Responsibilities” the Code of Conduct states:
“4. Arbitrators have the following general responsibilities:
• to uphold the highest standards of integrity and honesty and to act ethically in accordance with the law,
• to ensure fairness in dealing with parties involved in the arbitration process,
• to remain independent from the parties involved in the matter before them,
• to maintain the highest professional standards, in particular by continuing to improve and develop their professional knowledge and skills, and
• to uphold the integrity and reputation of the Commission at all times. To this end, Arbitrators must refrain from engaging in activities, or expressing opinions that might diminish the standing of the Commission or compromise their ability to deal with a specific case.”
66. Under “Fairness in Proceedings” the Code of Conduct states:
“5. With respect to their duty to ensure fairness, Arbitrators, in exercising their powers should:
• conduct proceedings according to the law, with due regard to equity, good conscious and the substantial merits of the case,
• abide by principles of procedural fairness,
• ensure that all parties are given adequate opportunity to participate in proceedings,
• ensure that decisions are based on relevant and logically probative information,
• treat the parties involved with respect and courtesy,
• take into consideration any special needs, such as language, cultural background, literacy or disability,
• ensure that any communication with the parties and witnesses occurs in an open and transparent way, and
• consider any factors that may give rise to an unfair advantage to one party over another.”
67. The Code of Conduct is in the nature of a ‘Guideline’ for Arbitrators. The force and effect of the Commission’s Guidelines was considered by Deputy President Byron in Rick Damelian Pty Limited v Romanas [2004] NSWWCCPD 93 where he said at [45]:
“The Guideline issued by the President is not a creature of statute but simply aims to provide a practical framework within which many of the practices, procedures and proceedings of the Commission ought to be conducted in the context of the Commission’s objectives and other relevant, statutory provisions.”
In considering the manner in which an Arbitrator may deal with the evidence before him, DP Roche made the following observations:
“73.Fourth, section 354(2) expressly permits the Commission to “inform itself on any matter in such manner” it thinks fits. I do not believe this provision gives Arbitrators carte blanch to consider any material that he or she may consider of interest to an issue in dispute. The broad terms of section 354 are constrained by Rule 15.2 set out above. In addition to the requirements that the evidence be logical, probative and relevant to the facts in issue and the issues in dispute, I would add that Arbitrator’s, when seeking to inform themselves on matters, have a duty to comply with the rules of natural justice and procedural fairness as discussed above. That is, they must give all the parties in the case a reasonable opportunity to consider the material. This includes allowing a reasonable time to seek an opinion from their own specialist or do their own research on the particular topic. The power should be used sparingly and cautiously. Usually, but not always, this will mean that the power should only be used when it is considered necessary to enable the particular matter to be determined according to its “substantial merits” (section 354(3)). Arbitrators should always be vigilant not to be, or give the appearance of being, an advocate for one side. In my opinion the Arbitrator in the present case acted fairly and with due regard to the principles of procedural fairness and the legislative provisions under which the Commission operates.”
In the present case, the Arbitrator did not have carte blanch to effectively take over conduct of the proceedings in the role of an advocate. Both parties were represented by legal practitioners. There is no evidence that the parties were in any way constrained in their conduct of the proceedings. Indeed, it is clear from the transcript that the Arbitrator on several occasions invited the parties to ask further questions of both the Appellant and the Respondent.
My view on this issue is in line with the recent Court of Appeal decision in South Western Sydney Area Service v Edmonds [2007] NSWCA 16 where McColl JA said as follows:
“91.Having regard to the nature of the dispute the Arbitrator was assigned to determine and the fact his decision directly affected both parties’ private rights he was, in my view, prima facie obliged to act in accordance with the obligations of procedural fairness and natural justice discussed by Deane J in Australian Broadcasting Tribunal v Bondand Others [1990] HCA 33; (1990) 170 CLR 321 at 365 ff; see also Salemi v MacKellar (No 2) [1977] HCA 26; (1977) 137 CLR 396 at 419 per Gibbs J (as his Honour then was). He was also, accordingly, obliged “to observe the recognized standards of judicial fairness” (Testro Bros Pty Ltd v Tait [1963] HCA 29; (1963) 109 CLR 353 at 370 per Kitto J) and, in particular, that which required him to bring an impartial mind to the exercise of his decision-making function: see Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23; (2001) 206 CLR 128 at [20] per Gleeson CJ, McHugh, Gummow and Hayne JJ; Australian Broadcasting Tribunal v Bondand Others (at 366 – 367) per Deane J.
. . .
94.Nevertheless, although the Commission operates pursuant to a legislative framework which frees it, to some degree, from “constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals” (Minister for Immigration and Multicultural Affairs v Eshetu at [49]), it is modelled on adversarial proceedings to the extent that issues are primarily defined by what for convenience can be described as “pleadings” (cf the primary judgment at [11]), the parties are entitled to be represented by a legal practitioner or agent and they adduce the evidence upon which they wish to rely before the Arbitrator. The proceedings “take the form of litigation between parties”: see Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (at [23] per Gleeson CJ, McHugh, Gummow and Hayne JJ). In contrast, in the “pure” European model of the inquisitorial process, the “task of the judge... is to act as a protagonist in the proceedings and it is the judge and prosecuting officials, not the parties, who have the responsibility for seeking out and testing the evidence, often in advance of a formal hearing”: Creyke and Bedford, at 4. Although I note, in this respect, that the Guidelines state “[q]uestions to witnesses, if any, will be by or through the Arbitrator”, it is not clear to what extent this is actually observed. Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng, for example, concerned a complaint that an Arbitrator hearing a case in 2003 limited the time for cross-examination by the employer.
95 However, even in the context of a Tribunal whose procedures have been held to be inquisitorial rather than adversarial in nature, plain words would be required to exclude the requirement to act impartially: Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (at [28] per Gleeson CJ, McHugh, Gummow and Hayne JJ; see also Kirby J (at [66] – [67]). I can find nothing in the WIM Act which excludes the obligation to so act.”
I cannot see that further questioning of either the Appellant or the Respondent by the Arbitrator would have made the picture any clearer. Both parties were adamant that their respective evidence supported their respective assertions. The principal difficulty was the extent of the evidence, rather than the substance of it. The Appellant, as I have said, had the onus of establishing an employment relationship with the Respondent. His evidence on this issue was, frankly, minimal and, as the Arbitrator concluded, it was “… impossible to find a clear intention spelt out from the available facts that the parties intended to enter into a legal relationship.”
THE ‘JONES V DUNKEL’ ISSUE
The Appellant submits the following:
“The Respondent failed to call a witness being the captain of the boat. The Respondent was (as the transcript will show) cross examined on this issue. In addresses the Applicant drew this to the Arbitrator’s attention and a Jones v Dunkel submission was made. The Arbitrator in his decision failed to deal with this submission by either drawing the adverse inference … or giving reasons as to why the adverse inference should not be drawn.”
The only evidence in the transcript in relation to the “captain” of the boat, Dave Dawson, was contained at page 23 as follows:
“Q.And I take it he [Dave Dawson] was aware that Mr Welch was not there in the capacity as an employee?
A.Well, he just thought he was coming for a run, like, just thought he was – because he knew he knew me.”
The proposition put by the Appellant’s solicitor was that Mr Dawson knew that the Appellant was not an employee on that occasion. Whether Mr Dawson would have had any knowledge as to the relationship between the Appellant and the Respondent is simply speculative, particularly in circumstances where the onus was on the Appellant to establish an employment relationship.
I considered the principles in Jones v Dunkel recently in James v Civilcon Plant Hire Pty Limited [2006] NSWWCCPD 276 as follows:
“71.The circumstances under which the rule in Jones v Dunkel is applicable were recently considered by the Court of Appeal in Wollongong Fabrications Pty Limited v Ramsbottom [2006] NSWCA 279. Tobias JA stated: “... the principle may be invoked for a deficiency in the evidence of a party bearing the legal onus of proving an issue.” Tobias JA went on to quote from Glass JA in Payne v Parker [1976] 1 NSWLR 191 at 201 noting that, whether the principle can or should be applied depends upon satisfaction of three conditions, namely:
‘(a) The missing witness would be expected to be called by one party rather than the other;
(b) His evidence would elucidate a particular matter
(c ) His absence is unexplained.’
72. Glass JA went on at 202 as follows:
‘I would think it insufficient to meet the requirements of principle that one party merely claims that the missing witness has knowledge, or that, upon the evidence, he may have knowledge. Unless, upon the evidence, the tribunal of fact is entitled to conclude that he probably would have knowledge, there would seem to be no basis for any adverse deduction from a failure to call to him.’
In the present case, the Appellant invited the Arbitrator to draw an adverse inference from the fact that Dave Dawson had not provided a statement. The Appellant had asserted (page 23 transcript) that Mr Dawson was aware that the Appellant was not an employee, an assertion supporting the Respondent’s case. But this is merely an assertion on the part of the Appellant and it is insufficient for the Appellant to claim that Mr Dawson may have had relevant knowledge. The evidence was such that the Arbitrator was not at all in a position to conclude that Mr Dawson probably would have had relevant knowledge of the issues in dispute, such that in those circumstances, there would be no basis for any adverse finding from a failure to call him.
I accept the Appellant’s submission that the Arbitrator has not addressed this issue in his ‘Statement of Reasons’ however, in line with the authorities to which I have referred, it was not appropriate for him to do so in circumstances where the “legal onus of proving an issue” lay with the Appellant. It was insufficient for the Appellant merely to claim that Dave Dawson may have had relevant “knowledge” on the issue of employment.
CONCLUSION
The evidence before the Arbitrator was, in my view, unsatisfactory in many respects. The Arbitrator was entitled to conclude that the Appellant’s evidence was not persuasive.
It was the role of the legal representatives for both parties, as advocates, to provide probative evidence upon which the Arbitrator might resolve the issues in dispute between the parties.
Whilst the Commission is entitled to “inform itself on any matter in such manner” it thinks fit, any “cross examination” by the Arbitrator in this particular case would not have further elucidated the issues. The parties were intransigent in their respect positions: in support of his claim, the Respondent provided a copy of a receipt purportedly as evidence of the fact that the Appellant paid to accompany the Respondent on his boat on 17 December 2004. That evidence was sufficient to cast some doubt on the Appellant’s assertions. In the absence of further evidence from the Appellant, the Arbitrator, in my view, had little choice but to conclude that the evidence did not establish a clear intention that the parties intended to enter into an employment relationship.
The Appellant has made reference in his submissions to the decision of House v R (1936) 55 CLR 499 (‘House’) which set out principles governing appeals against an exercise of discretion. As ADP Snell said in Electrolux Home Products Pty Limited v Richey & Email Limited [2006] NSWWCCPD 242 “… intervention will be justified where a Judge at first instance has acted on a wrong principal, allowed extraneous or irrelevant matters to guide or affect him, mistaken the facts, or not taken into account some material consideration.”
In the present case, I cannot see any basis upon which it may be said that the Arbitrator committed any of the ‘offences’ set out in House.
My power to revoke an Arbitrator’s decision pursuant to section 352(7) of the 1998 Act is exercisable only where it is demonstrated that the decision of the Arbitrator is affected by some legal, factual or discretionary error. (See Allesch v Maunz (2000) 203CLR 172). Moreover, as Deputy President Fleming said in RaniaFalcon v Narellan Enterprises Pty Limited [2003] NSWWCCPD 34 “Where the parties are accorded procedural fairness” and the Arbitrator has taken “the relevant factors into account and the discretion has been exercised fairly and lawfully, it is not appropriate, on review by a Presidential Member, to interfere with the Arbitrator’s decision.”
I can see no error in the Arbitrator’s determination in light of all the available evidence before him and in those circumstances, I do not propose to interfere with his determination.
DECISION
The decision of the Arbitrator dated 22 September 2006 is confirmed.
I make no order as to costs of the appeal.
Deborah Moore
Acting Deputy President
27 February 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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