Whittaker v State Forests of New South Wales
[2008] NSWWCCPD 136
•20 November 2008
| WORKERS COMPENSATION COMMISSION | ||||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||||||
| CITATION: | Whittaker v State Forests of New South Wales [2008] NSWWCCPD 136 | |||||
| APPELLANT: | Ian Whittaker | |||||
| RESPONDENT: | State Forests of New South Wales | |||||
| INSURER: | Self insurer | |||||
| FILE NUMBER: | WCC744-05 | |||||
| DATE OF ARBITRATOR’S DECISION: | 26 June 2008 | |||||
| DATE OF APPEAL DECISION: | 20 November 2008 | |||||
| SUBJECT MATTER OF DECISION: | Section 55 Workers Compensation Act 1987, burden of proof. | |||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Kevin O’Grady | |||||
| HEARING: | On the papers | |||||
| REPRESENTATION: | Appellant: | Penny Waters Armstrong Legal | ||||
| Respondent: | Leigh Virtue & Associates | |||||
| ORDERS MADE ON APPEAL: | ||||||
| 1. | Paragraphs 5(i) and 5(ii) of the Arbitrator’s decision dated 26 June 2008 are revoked and the following order made in their place: “5. (i)The Respondent’s application for review brought pursuant to section 55 of the Workers Compensation Act 1987 is dismissed.” | |||||
| 2. | Paragraphs 1, 2, 3, 4, 5 (iii) and 5(iv) of the Arbitrator’s determination dated 26 June 2008 are confirmed. | |||||
| 3. | The Employer is to pay the Worker’s costs of this appeal. | |||||
BACKGROUND TO THE APPEAL
On 22 July 2008 Ian Whittaker (‘the Worker’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 26 June 2008.
The Respondent to the Appeal is State Forests of NSW (‘the Employer’).
The Worker, who is 60 years of age, commenced work with State Forests of NSW in February 1972 and there remained until termination of his employment which occurred on 20 February 2004.
The Worker is presently in receipt of compensation benefits at the rate of $383.77 per week. Those payments are being made by the Employer pursuant to an award of the Commission made by an Arbitrator on 26 June 2008. The Worker’s entitlement to those weekly benefits is founded upon an earlier determination of the Commission concerning alleged injury and resultant incapacity which arose out of or in the course of his employment with the Respondent.
The history of the dispute between the parties in these proceedings is both lengthy and somewhat complex. The Worker’s claim was initially determined by an Arbitrator in June 2005 at which time an award in his favour was entered by the Commission. That award was set aside on appeal to a Presidential Member (Handley ADP) in April of 2006 and the matter was remitted for re-determination before a different Arbitrator.
The Worker’s claim was determined by a second Arbitrator and an award was entered in his favour on 11 July 2006. That award provided, inter alia, for an award in respect of weekly payments at the rate of $458.77 per week from 21 February 2004 to date and continuing. The reasons for the Arbitrator’s decision then made were published and accompanied the relevant Certificate of Determination. The Arbitrator found as a fact that the Appellant had suffered an injury to his neck and right shoulder “as a result of the nature and conditions of employment which caused an injury to the neck being a disease which is of such nature as to be contracted by a gradual process.” (at [101] of the Arbitrator’s Statement of Reasons dated 11 July 2006 (‘Reasons’)).
The Arbitrator’s decision was then the subject of challenge by the Employer and an appeal was heard, on the papers, by Candy ADP whose decision was delivered on 29 June 2007. On appeal the Commission considered a multiplicity of issues raised which issues included a challenge to the Arbitrator’s assessment of the quantum of entitlement to weekly payments as determined by the Arbitrator. All submissions made on behalf of the then Appellant were rejected and the appeal failed.
The Employer lodged an appeal against the determination of the Presidential Member to the Court of Appeal. That appeal was discontinued.
The Arbitrator’s decision made in July 2006 became the subject of an Application for Reconsideration brought on behalf of the Employer. Pursuant to directions made by the Arbitrator, an application by way of Notice of Motion was registered with the Commission on 23 May 2008. That application was one limited to reconsideration of the quantum of the weekly award made in favour of the Worker. In support of that Application for Reconsideration the Employer sought to rely on documents which were attached to an Application to Admit Late Documents which had been filed with the Registry on 12 June 2007. Those documents included an investigation report and a video tape film, each of which concerned the recorded activities of the Worker.
The Employer’s application came before the Arbitrator for determination on 13 June 2008. It was at that hearing before the Arbitrator that the parties agreed that the Employer’s application was not, as stated in documents filed on its behalf, a reconsideration of the Arbitrator’s award but an application for review of weekly payments brought by the Employer pursuant to section 55 of the Workers Compensation Act 1987 (‘the 1987 Act’). The Arbitrator, who had earlier raised the questions relating to procedure, proceeded to deal with the Employer’s application seeking review of weekly payments. Submissions were delivered on behalf of each party before the Arbitrator and his decision was reserved.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 26 June 2008 records the Arbitrator’s orders as follows:
“The Commission determines:
1.The respondent will pay the applicant the sum of $18,500 in respect of a 14 percent whole person impairment in accordance with the Medical Assessment Certificate lodged herein by the Medical Appeal Panel.
2.By consent the respondent will pay the applicant the sum of $15,000 in respect of s.67 benefits.
3.I grant liberty to the parties to apply on telephone notice to each other in respect of s.66 amount so ordered.
4.The respondent will pay the applicant’s costs involved in the s.67 claim as agreed or assessed.
5.I vary the orders made by me dated 11 July 2006 by awarding the following:-
i.There will be an award in favour of the applicant in the sum of $383.77 per week from 30 May 2007 to date and continuing.
ii.The respondent is to have credit for such over payments already made.
iii.The respondent will pay the applicant’s costs as agreed or assessed.
iv.I certify this matter as being complex and order an uplift of 30 percent, such an order being applicable to both parties.
A brief statement is attached to this determination setting out the Commission’s reasons for the determination.”
It should be noted that the orders made in paragraphs 1 – 4 inclusive of the Arbitrator’s Determination were the subject of agreement between the parties, the only matter having been contested at the hearing was the question of review of weekly payments. This appeal is concerned only with the Arbitrator’s orders with respect to variation of his earlier award made in July 2006.
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
(i) whether the Arbitrator erred in his determination that there was an evidentiary onus upon the Worker when addressing the question of review of the weekly payments award;
(ii) whether the Arbitrator erred in failing to conclude that there was no evidence to support variation (reduction) of the weekly payments award;
(iii) whether the Arbitrator misdirected himself in his evaluation of evidence concerning the Worker’s change of address and the question of the relevance of that fact to his entitlement to continuation, or otherwise, of the original weekly payments award;
(iv) whether the Arbitrator erred in drawing an inference concerning the Worker’s ability to earn founded upon the fact of the Worker’s relocation from Inverell to Griffith;
(v) whether the Arbitrator erred in drawing an inference against the interests of the Worker in contravention of the principles enunciated in Jones v Dunkell (1959) 101 CLR 298 (‘Jones’), and
(vi) whether the Arbitrator failed to provide sufficient reasons concerning his adjudication of the evidence which led to the decision that the weekly award be reduced.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘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.”
The Employer submits (at 2.3 of Schedule attached to Notice of Opposition) that, in the event that leave to appeal is granted, an oral hearing “is then required”.
The provisions of section 354(6) of the 1998 Act grants to the Commission a discretion to proceed, in an appropriate case, “without holding any conference or formal hearing”. That discretion is enlivened in circumstances where the Commission “is satisfied that sufficient information has been supplied” (see Fletcher International Exports Pty Limited v Barrow and Anor [2007] NSWCA 244 per Mason P (Santow JA and Tobias JA concurring) at para 94).
In the present matter the Commission has before it all that evidence adduced on behalf of each party concerning the present dispute, which concerns variation of the Worker’s weekly benefits award, as well as all that evidentiary material adduced on behalf of the parties in respect of all earlier proceedings. The Commission further has the benefit of a transcript of proceedings conducted before the Arbitrator concerning application to vary the award which records the parties’ submissions (“transcript”). In addition to that material each party has provided Written Submissions in support of its arguments concerning the issues raised on the present appeal. In the circumstances, having regard to Practice Directions 1 and 6, 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.
LEAVE
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Section 352(2) of the 1998 Act provides:
“(2) The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a) at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b) at least 20% of the amount awarded in the decision appealed against.”
The Employer submits, having regard to the terms of the Arbitrator’s order concerning review of the weekly award,that the monetary thresholds specified in section 352(2) have not been met. The Arbitrator’s review of that award resulted in a reduction of the Worker’s entitlement by $75 per week. It is argued on behalf of the Employer that the reduction of $75 represents less than 20% (16.35%) of the original weekly award which was in the sum of $458.77. It appears to me that there are two difficulties with that argument. Firstly the Employer’s arithmetic calculation is made having regard to the award which was the subject of the Application for Reconsideration pursuant to section 55 of the 1987 Act. The “amount awarded in the decision appealed against” in terms of section 352(2)(b) is $383.77 per week. There is no submission with respect to the appropriate arithmetic calculation. The absence of such submission is, in my view, of no consequence given the second matter which is raised by proper analysis of the application of section 352(2)(b).
The second difficulty concerning the Employer’s argument on this threshold issue is that when determining “the amount of compensation at issue on the appeal” within the meaning of the subsection the Commission is to have regard to the amount of compensation at issue in the proceedings before the Arbitrator at first instance (see Grimson v Integral Energy [2003] NSWWCCPD 29 at [30]) It was argued on behalf of the Employer before the Arbitrator that, on review, there should be a reduction of the weekly award “to something in the order of $250 per week …”. That argument, whilst rejected by the Arbitrator, raised as an issue in the proceedings before the Arbitrator a dispute with respect to the Worker’s entitlement to retain approximately 50% of the original weekly award. Whilst the Arbitrator ultimately determined that a more modest reduction to the original award was appropriate I am of the view that, having regard to the Employer’s argument at the hearing, the amount of compensation at issue meets the threshold specified by section 352(2)(b).
The Arbitrator’s order concerning review of the Worker’s entitlement to weekly payments dates from May 2007. Having regard to the quantum of compensation in dispute between the parties concerning past entitlement since May 2007 to the present and the quantum of future compensation which is in dispute I am of the view that the threshold specified in section 352(2)(a) has been met.
Given that the monetary threshold requirements have been satisfied and having regard to the subject matter of the appeal and the arguments raised I order that leave be granted to the Worker to appeal to the Commission.
EVIDENCE AND SUBMISSIONS
The Arbitrator’s Reasons which accompany his Certificate of Determination dated 26 June 2008 has, at paragraph 2 thereof, a very general summary of the documentary evidence that was then before him. It is clear that there was before the Arbitrator all the evidence relied upon by the parties with respect to proceedings conducted up to that date including transcripts of proceedings both before him and of the proceedings conducted before the first Arbitrator whose orders were reversed by Handley ADP on appeal. The Determinations of both Handley ADP and Candy ADP were also before the Arbitrator. Other material noted by the Arbitrator included the Medical Assessment Certificate of Dr Clery and a Medical Appeal Panel Decision. It was noted at paragraph 3 of Reasons that no oral evidence had been adduced before him at the hearing of the Employer’s application for review of the award for weekly payments.
The transcript referred to at [17] above records the parties’ submissions concerning what was ultimately agreed as being an application for reconsideration of the original award brought by the Employer pursuant to section 55 of the 1987 Act. That transcript records much argument and discussion concerning the evidentiary material which was the subject of the Application to Admit Late Documents filed on 12 June 2007. The material which was the subject of that Application was a report of Virtual Intelligence dated 5 June 2007 which summarised the surveillance activities conducted by that organisation concerning the activities of the Worker, together with a video film of the activities as observed by the author of that document. It is clear that the report and video film were received in evidence by the Arbitrator however that fact is not recorded in the transcript nor is that documentary evidence expressly noted in paragraph 2 of the Arbitrator’s summary of the material that was before him. I conclude that that material was in fact before the Arbitrator having regard to the submissions of the parties both at the hearing and on this appeal and, in particular, having regard to the reasons expressed by the Arbitrator for his decision concerning the application to review the award.
There is a very large volume of material before the Commissioner, however the evidence which is pertinent to the appeal is within a relatively narrow ambit.
In response to a direction by the Arbitrator, the Employer filed, on 23 May 2008, what was described as an Application by Notice of Motion. Annexed to that Application was a copy of the surveillance report referred to above and “grounds for reconsideration” were stated as follows:
“1.The capacity demonstrated by the Applicant by reason of his activities while under observation and the inconsistencies in those activities compared to his asserted level of disability and incapacity.
2.The significance of the Applicant’s actual address (as opposed to the address that he alleged at arbitration) noting in particular those considerations taken into account by the Arbitrator at first instance regarding the labour market available to the Applicant (see for example paragraphs 116 and 119 of the Statement of Reasons).”
It may be seen that it was the Employer’s argument that the video film provided evidence permitting an argument that the extent of the Worker’s incapacity was not as great as was found by the Commission at the time of entry of the original award. It was further argued that the Worker’s change of address (as stated in the investigation report having altered from Inverell to Griffith NSW), was significant in the context of the application for review of the award having regard to matters addressed by the Arbitrator at the original hearing.
As is discussed hereunder the Arbitrator rejected the Employer’s argument with respect to the relevance of the content of the video film to the matters requiring attention having regard to the provisions of section 55 of the 1987 Act, however accepted the Employer’s argument with respect to the relevance of the Worker’s change of address to the matters which required determination. No point of contention is raised on behalf of the Employer with respect to the Arbitrator’s rejection of the relevance of the video film to the matters requiring determination. In those circumstances the resolution of matters raised on this appeal requires an examination of that evidence which relates to the Arbitrator’s assessment of entitlement to weekly compensation which arises from the apparently undisputed fact that the Worker had, at some indeterminate time, changed his address from Inverell to Griffith.
Worker’s Submissions
Under cover of letter of 6 June 2008 the Worker provided written submissions with respect to the Employer’s application for review. Considerable attention was given to argument seeking to resist the reception into evidence of that material being the investigation report and video film.
It was further argued on behalf of the Worker that, having regard to the state of the material before the Commission, the Worker did not know the case that he was required to meet. It was also argued that the Worker’s incapacity as determined by the Commission in July 2006 persists and further that there had been no change in the level of the Worker’s incapacity since that date. It was further argued that there had been “no change in the Applicant’s circumstances or the wages position of the Worker to that upon which the previous award of the Commission of 11-7-2006 was based.”
The transcript reveals a reiteration of the argument as summarised above put on behalf of the Worker by Counsel then appearing. It was further argued by Counsel that there was no evidence adduced on behalf of the Employer concerning any relevant “change of circumstance” that would provide a basis for any review of the award. It was further put, and this argument is of particular significance on this appeal, that there was “… no evidence for us to traverse” (transcript page 45, line 49). It is apparent from the manner in which argument was presented that there was no issue that the Worker had in fact changed his address.
The Worker’s written submissions which have been provided in support of this appeal suggest error on the part of the Arbitrator concerning his conclusions based upon an absence of evidence from the Worker concerning the labour market in Griffith. It is stated that the Arbitrator “… considered that the Worker bore an onus of disproof on Jones v Dunkell principles …”.
The Worker asserts that in the context of an application for review of an award (section 55) brought on behalf of the Employer, the party seeking such a review bears the onus to prove relevant change in circumstance. The decision of the High Court in Jones was the subject of examination in the course of submissions and it is argued that the Arbitrator erred when drawing an “adverse inference” against the Worker founded upon his failure to adduce evidence concerning labour market conditions in Griffith.
It was further argued on behalf of the Worker that there “… was no explanation given of the evidence upon which the reduction made …” was based. Reference is made in the course of submissions to the decision of Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, and the argument is developed that the Arbitrator did not meet the obligation to provide reasons for his decision.
Employer’s Submissions
The transcript records those submissions put on behalf of the Employer before the Arbitrator. The first of two fundamental arguments was advanced that the video film demonstrated that the Worker had a “higher capacity than that which was the subject of the determination that resulted in a section 40 award of $458.77”. As noted above this argument was rejected by the Arbitrator and no point of contention has been raised on behalf of the Employer with respect to that ruling.
The second argument advanced on behalf of the Employer at the hearing was that the Worker, given his relocation to Griffith, had access to “… a far more substantial labour market” than existed at the time he gave evidence in support of his original application for weekly payments. It was put in argument that, whilst the Worker’s ability to earn had been determined as being “in the order of $300 per week” at the time of the relevant award there should be a determination on the application for review that the Worker, since changing his address, had an ability to earn of $500 per week. It was argued that any variation of the award should be effective from “May or June of 2007”.
On this appeal it is put on behalf of the Employer that, in the absence of evidence from the Worker as to the state of the labour market in Griffith, it was open to the Arbitrator to “reconsider the matter in the way in which he has.”.
The Employer further argues that there was an onus upon the worker to “adduce any relevant evidence concerning the state of the labour market reasonably open to him.”
It is argued by the Employer that the Arbitrator’s original determination was founded upon the state of the labour market in Inverell. The Worker, having moved to Griffith and chosen to call no evidence of the labour market available to him, cannot complain of the reduction of his entitlement given the absence of such evidence.
The Employer in submissions seeks to support the Arbitrator’s application of principle founded upon the decision in Jones and the sufficiency of the Arbitrator’s reasons.
DISCUSSION AND FINDINGS
This appeal is brought pursuant to the provisions of section 352 of the 1998 Act. Subsection (5) of that section provides:
“(5) An appeal under this section is to be by way of review of the decision appealed against.”
The nature of the “review” stated in the aforementioned subsection was considered by the NSW Court of Appeal in Aluminium Louvres & Ceiling Pty Limited v Zheng [2006] NSWCA 34; 4 DDCR 358 (‘Zheng’) where the Court was there considering an appeal from a Deputy President of this Commission who had heard an appeal from an Arbitrator which involved arguments concerning suggested denial of procedural fairness. In his leading judgment Bryson JA (with whom Handley JA and Bell J agreed) said at [38]:
“38. A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator’s discretionary decision in controlling procedure may be based on the test stated in House v R (1936) 55 CLR 499 at 504 ‑ 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member. ….”
The concept of “review” as it appears in the aforementioned subsection was again considered by the NSW Court of Appeal in State Transit Authority of NSW v Fritzi Chemler [2007] NSWCA 249 where, it was observed by Spigelman CJ (with whom Basten JA and Bryson AJA agreed) at [30]:
“30. A Presidential member exercising a power to review a decision must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit …”
The conduct of proceedings before the Arbitrator was initially complicated by an absence of certainty as to the nature of the application which was before him for determination. It is for this reason that much time in argument, and indeed in the course of the Arbitrator’s Reasons, was taken up with the merit or otherwise of the Employer’s application to adduce evidence being the surveillance report and the video film. The Arbitrator, at Reasons [24] and [25] states plainly that the true nature of the application brought before him was an application for review of weekly payments made pursuant to section 55 of the 1987 Act. The moving party was the Employer and the Arbitrator’s directions made on 19 May 2008 concerning procedure required the parties to provide all evidence upon which they relied with regard to what was described as “reconsideration”, following filing by the Employer of a Notice of Motion.
As outlined above the only evidence relied upon by the Employer were the surveillance report and the content of the video film. The Worker provided written submissions however adduced no evidence by way of response to the Employer’s application.
Section 55 of the 1987 Act provides:
“55 Review of weekly payments
(1) Any weekly payment of compensation may, because of a change of circumstances, be reviewed by the Commission at the request of the employer or the worker or of the Authority.
(2) On any such review:
(a) the weekly payment may be ended, reduced or increased (but subject to the provisions of this Division relating to the amount of the weekly payment), and
(b) the amount of the weekly payment (if any) shall, in default of agreement, be determined by the Commission.
(2A) If on any such review a weekly payment of compensation is ended or reduced with effect from a day that is earlier than the date of the Commission’s order on the review, the Commission may order the worker to refund the amount of any payments made to the worker to which the worker is not entitled as a result of the order on the review.
(3) On any such review, the amount of any weekly payment payable in respect of an injury may be increased to such an amount as would have been awarded if the worker had, at the time of the injury, been earning the wage or salary which the worker would probably have been earning, at the date of the review, if the worker had remained uninjured and continued to be employed in the same or some comparable employment.
(4) A review under this section shall be given such priority as is reasonably practicable, and any necessary directions may be given to expedite the hearing of the matter.”
It may be seen from the terms of section 55 that before a review is to take place it must be established that there has been a change of circumstances. What is required to be proven, and the burden of proof is that of the moving party, is that there is some relevant change of circumstance between those which prevailed at the time of the making of the original award and those which have come to prevail since. In the present matter it is of some significance that at the time the Arbitrator’s award was made in July of 2006 the Commission relied, in part, upon the contents of a transcript of the original arbitration hearing which was conducted on 23 May 2005. That transcript recorded the oral evidence of the Worker including that which was relevant to the question of his ability to earn in his incapacitated state. That evidence, as is correctly highlighted by the Employer in the course of submissions both before the Arbitrator and on this appeal, addressed the state of the labour market available to the Worker in Inverell NSW. The transcript records (at pages 11 and 12) portions of the evidence given by the Worker as to the state of the labour market in that town.
The Employer failed to persuade the Arbitrator that the contents of the video film demonstrated a relevant change of circumstance, that being that his physical activities demonstrated that he had increased his ability to earn since the making of the first award. The only other argument relied upon by the Employer at the hearing, as above noted, was that the labour market available to the Worker is “far more substantial” than that market to which he had access at the time he gave evidence and that, if that be accepted, there is a relevant change of circumstances that would lead to a reduction of the original award. This argument was accepted by the Arbitrator and the weekly award was reduced by $75 to $383.77 per week.
It is the Worker’s complaint on this appeal that the Arbitrator has erred in determining that there had been a shift of the evidential burden from the Employer, the moving party, to the Worker.
It was stated by the Arbitrator (at [34] of Reasons):
“Ground 2 of the employer’s application by way of Notice of Motion clearly raised the issue that the change of address was relevant to my findings as to the open labour market when one considers the paragraphs 116 and 119 of my original determination. That being so, the evidentiary onus was on the injured worker to demonstrate that the same difficulties that applied in Inverell also applied in Griffith, so that there should be no alteration. No such evidence was provided, from which, applying the dicta in Jones v Dunkell [1959] HCA 8; (1959) 101 CLR 298, I infer such evidence would not assist the worker.”
This appeal concerns the correctness or otherwise of the Arbitrator’s manner of dealing with the state of the evidence as recorded at Reasons [34] above quoted and, more particularly, the correctness or otherwise of his determination to draw an inference from the absence of evidence from the Worker with respect to conditions in Griffith that any such evidence would not be of assistance to the Worker.
It is clear having regard to the provisions of section 354 of the 1998 Act that the Commission is not bound by the rules of evidence. I have earlier observed that the burden of proof concerning change of circumstances required by proper application of section 55 of the 1987 Act is upon the moving party. Such a conclusion is founded upon the general principles applied by the Courts concerning questions raised as to burden of proof in proceedings. I consider it appropriate to have regard to such principles, notwithstanding the earlier mentioned provision of the 1998 Act, given that a proper approach to evidentiary material by the Commission should, in my view, entail reasonable and appropriate regard to established principles concerning questions of admissibility, weight of evidence and other matters including questions as to the burden of proof (see discussion by McColl JA (with whom Giles JA and Tobias JA concurred) in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 (‘Edmonds’) (at paragraphs 127 – 131)).
The correctness of the Arbitrator’s approach to the evidence, or particularly to the questions raised by the absence of evidence from the Worker, as revealed in [34] of Reasons requires an examination of the state of the evidence generally.
The investigation report which was evidently admitted by the Arbitrator records the Worker’s address as at the date of that report (5 June 2007) as being 3 Bent Street Griffith. This is not disputed by the Worker. There is no evidence as to when the Worker made the apparent move from Inverell to that address in Griffith. There is no further evidence adduced on behalf of the Employer addressing any other circumstance upon which reliance is placed to justify a variation of the award.
The position generally with respect to perceived shifting of an evidential burden is that, if an inference is open to be drawn from evidence presented by the moving party, prudence demands that the opponent adduce some evidence to rebut such inference. If the opponent remains silent it is open, having regard to the majority view as expressed in Jones, to draw an inference that any evidence adduced on behalf of the opponent would not assist his case. As is stated by the learned author of Cross on Evidence (at [7210]):
“… The opponent merely runs the risk of losing the issue if the opponent remains silent, and, in such a case, when it is said that the burden of proof has shifted from the proponent to the opponent, all that is meant is that the latter should adduce some evidence as a matter of common prudence.”
The fundamental issue raised on this appeal is whether, having regard to the undisputed fact that the Worker has changed his address from Inverell to Griffith, any inference may be drawn that the labour market in Griffith is in a relevant sense different to that which prevails in Inverell. I am of the view that no such inference can be drawn.
The present circumstances then give rise to the question as to whether the silence of the Worker permits the adverse inference as stated by the Arbitrator at [34] of Reasons.
The High Court of Australia was confronted with an analogous set of circumstances in the matter of Jones. The complexity of the issues raised when dealing with the suggested shifting of an evidentiary onus is demonstrated by the division of opinion among the members of that Court. When dealing with the directions given by the Trial Judge at first instance in Jones, Menzies J, a member of the majority in that case, observed:
“9. In my opinion a proper direction in the circumstances should have made three things clear: (i) that the absence of the defendant Hegedus as a witness cannot be used to make up any deficiency of evidence; (ii) that evidence which might have been contradicted by the defendant can be accepted the more readily if the defendant fails to give evidence; (iii) that where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference. (at p312)”
In the present case the only matter proven by the Employer is that there has been a change of address. The Worker lived in Inverell at the date he gave evidence and has, for some indeterminate time, lived in Griffith. There is no evidence as to the state of the labour market available in Griffith. The absence of such evidence is a deficiency in the Employer’s case. As stated by Menzies J in Jones the failure on the part of the Worker in the present matter to give evidence on that issue “cannot be used to make up any deficiency of evidence”. There being no evidence as to the state of the labour market in Griffith there was nothing, in my view, to be “contradicted” by the Worker. Further I am of the opinion that nothing has been presented in evidence by the Employer to enable an inference to be drawn that there was a relevant difference between the labour markets in the two towns.
It may be seen that, having regard to the views of the High Court in Jones as I have attempted to outline above, I conclude that the Arbitrator has erred in drawing the adverse inference which he noted at [34] of Reasons. The Employer’s evidence was deficient in that no inference may, in my view, be drawn from the scant material presented by the Employer that a relevant difference in the labour markets existed, hence there was nothing in evidence which the Worker was required to contradict.
For the reasons above stated I conclude that the Arbitrator’s order reducing the quantum of the award was made in the absence of evidence and as such constitutes error and requires revocation. In the circumstances it is unnecessary to address the matters raised on behalf of the Worker with respect to the suggested insufficiency of reasons as expressed by the Arbitrator.
The question arises as to whether, on this appeal, a new decision should be made in its place. The NSW Court of Appeal in Chubb Security Australia Pty Limited v Trevarrow [2004] NSWCA 344 considered the legislative intention behind section 352 of the 1998 Act and has expressed the view that should an appeal be upheld it is preferable, if possible, that the Presidential Member finally determine the matter (per Santow JA at paras [28] and [29]).
I have concluded that the Arbitrator was wrong to reduce the Worker’s award. In all the circumstances I consider it appropriate to revoke the decision concerning such reduction. An order dismissing the Employer’s application for review brought pursuant to section 55 of the 1987 Act should be made.
DECISION
Paragraphs 5(i) and (ii) of the Arbitrator’s decision dated 26 June 2008 are revoked and the following order made in their place:
“5. (i) The Respondent’s application for review brought pursuant to section 55 of the Workers Compensation Act 1987 is dismissed.”
Paragraphs 1, 2, 3, 4, 5(iii) and 5(iv) of the Arbitrator’s determination dated 26 June 2008 are confirmed.
COSTS
The Employer is to pay the Worker’s costs of this appeal.
KEVIN O’GRADY
Acting Deputy President 20 November 2008
I, TUYET WALLIS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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