Woolstar Pty Limited v Draper
[2024] NSWPICPD 72
•6 November 2024
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER | |
CITATION: | Woolstar Pty Limited v Draper [2024] NSWPICPD 72 |
APPELLANT: | Woolstar Pty Limited |
RESPONDENT: | Nicole Draper |
INSURER: | Employers Mutual NSW Limited |
FILE NUMBER: | A1-W2316/24 |
PRESIDENTIAL MEMBER: | Acting Deputy President Geoffrey Parker SC |
DATE OF APPEAL DECISION: | 6 November 2024 |
ORDERS MADE ON APPEAL: | 1. Leave to appeal is granted. 2. The Member’s determination of 13 June 2024 is revoked. 3. The matter is remitted for allocation to an alternative member for determination. 4. The documents the subject of the Application to Admit Late Documents dated 7 June 2024 not previously received should be available to the Commission for determination of the proceedings notwithstanding non-compliance with rule 67 of the Personal Injury Commission Rules 2021. Whether any particular document should be admitted is a matter for determination of the Member hearing the proceedings having regard to s 43 of the Personal Injury Commission Act 2020. |
CATCHWORDS: | WORKERS COMPENSATION – Section 352(3A) of the Workplace Injury Management and Workers Compensation Act1998, clause 28 of Procedural Direction PIC 3 considered and applied, adequacy of reasons, consideration of the interests of justice for the admission of late documents required |
HEARING: | On the papers |
REPRESENTATION: | Appellant: |
| Mr T Grimes, counsel | |
| BBW Lawyers | |
| Respondent: | |
| Ms E Grotte, counsel | |
| John Peisley & Associates | |
DECISION UNDER APPEAL | |
MEMBER: | Mr M Wright |
DATE OF MEMBER’S DECISION: | 13 June 2024 |
INTRODUCTION
This is an appeal from a decision by a Member of the Personal Injury Commission (Commission) on 13June 2024 refusing leave to rely upon certain documents the subject of an Application to Admit Late Documents (AALD).
By an AALD signed 7 June 2024, the appellant sought leave to rely upon 278 pages of documents not previously lodged with the Commission.
The respondent did not object to the Commission receiving certain of the documents.
The respondent objected to three classes of documents, namely:
(a) text message thread between a fellow employee and the respondent (pages 28–61);
(b) a schedule of photographs of the respondent posted on Instagram by Mr Jorge Colvin from 9 January 2024 (pages 72–81), and
(c) surveillance reports by AB Investigators dated 9 May 2024 and 3 June 2024 (pages 213–278).
The Member granted leave to rely upon the remaining documentation, which was not objected to and comprised:
(a) meeting notes;
(b) interviews with witnesses;
(c) medical reports and clinical notes, and
(d) bank statements.
For the reasons that follow, the appeal is allowed and the matter remitted for the allocation of a further date for hearing before an alternative member of the Commission.
BACKGROUND FACTS
The Member delivered an ex tempore judgment dealing with the issue before him. In order to understand his reasons, it is necessary to outline some background facts not apparent from the transcript of the Member’s reasons.
The background information is sourced predominantly from the respondent’s statement dated 4 January 2023. For the purpose of determining the appeal it is unnecessary for me to make findings about the accuracy or veracity or to resolve contested factual matters that will be a matter for the Commission when the ultimate decision is determined. I make no findings as to matters which may be the subject of contest at the final hearing of the matter.
The respondent lodged an Application to Resolve a Dispute (ARD) with the Commission dated 15 March 2024.
The ARD alleged “disease” injury on 10 July 2022 caused by “sexual harassment, bullying and harassment in workplace upon request of transfer to different shift and in relation to leave taken.”
The respondent claimed weekly compensation from 10 March 2023 on an ongoing basis, with a pre-injury average weekly earnings figure of $960 per week.
In the statement dated 4 January 2023, the respondent alleged that on 27 January 2022 she was sexually assaulted. The alleged assailant was a fellow employee. The assault did not occur at work.
Subsequently the respondent discussed the alleged assault at work. The appellant’s managerial staff regarded this as inappropriate and the respondent was given a verbal warning with respect to talking inappropriately on the workplace floor.
The respondent says she received a text message from the alleged assailant which referred colloquially to her breasts. She said she raised the issue with Kylie Anderson from Human Resources at a meeting of 13 May 2022, but nothing was done about it.
The respondent says that she did not feel safe at work. She decided to report the sexual assault to the police. She reported the allegation to Wyong Police Station and was given an event number. The respondent says she gave that number to Ms Anderson via email.
She said:
“I remained off work for approximately the next 3 months with medical certificates (not WorkCover certificates) as I [was] continuing to suffer from extreme levels of anxiety in relation to what had occurred and the way in which the matter had been handled by management. I rarely left my bedroom and a lot of the time I could not even properly look after my children. My husband was driving me to and from medical appointments during this time including to my GP, Dr Stephen Green of Warnervale GP Super Clinic, and also a psychiatrist I was referred to by my GP, this being Dr Jothimanikandan Ramalingam of Berkeley Vale Private Hospital. This meant he had to take time off work also to help with these appointments and family duties.”[1]
[1] ARD, p 5, [24].
The respondent says that by August 2022 she felt somewhat better and was able to leave the house more often than she had been.
On 15 August 2022 the respondent had a meeting with the appellant’s Operations Manager, Mitchell Quinn, and her Team Manager, Jules Mooney. The meeting included discussions about changing the respondent’s shift time from 1.30 am to 1.00 pm so as to enable the respondent to avoid her shift overlapping with the person alleged to have sexually assaulted her and at the same time enable her to be supported by her husband who was on the same shift.
On 6 September 2022 a further meeting occurred with Mr Quinn and he agreed that the respondent could start her shift at 1.00 pm and that she would move to a part-time work status.
On 15 October 2022 a former colleague committed suicide. This gave rise to a dispute about whether the respondent would be granted paid leave for a period with respect to an emotional state consequent upon this person’s suicide
In her statement the respondent said:
“My current symptoms include ongoing anxiety, depression, panic attacks, emotional volatility and tearfulness. The severity of these symptoms varies from day to day. On some days, I cannot even leave my bedroom. On other days, and generally with the encouragement of my husband, I can go out. For example, on New Year’s Day 2023, I managed to go out with my family and go for a bush walk at Woy Woy. On other occasions in recent weeks, I have felt very tired and have also felt unable to perform tasks I normally would such as feeding and caring for my children.”[2]
[2] ARD, p 14, [75].
The above matters are intended by way of background to the decision of the Member. They are intended to show the general nature of the respondent’s case. In due course the Member hearing the matter will be required to consider the evidence and make appropriate findings of fact.
THE MEMBER’S REASONS
The Member firstly considered an AALD dated 4 June 2024 filed by the respondent. The appellant opposed leave being granted to admit the documents, but the Member was persuaded that those documents were of some relevance “sufficient to warrant” the documents being admitted, subject to weight.[3]
[3] Transcript (T) of proceedings 13 June 2024, T 12.10–14.
After receiving information from the respondent’s counsel as to what documents in the appellant’s AALD of 7 June 2024 were not objected to, the Member heard submissions with respect to the remaining documents.
The Member firstly ruled that he would not give leave to rely upon the surveillance reports of AB Investigation dated 9 May 2024 and 3 June 2024.
The Member gave the following reasons for his conclusion with respect to the surveillance material.
Firstly, they were served and provided very late in the piece.[4]
[4] T 18.4.
Secondly, there was no mention at the preliminary conference of these matters being raised.[5]
[5] T 18.6.
Thirdly, he said he had examined the surveillance reports and that in his view they were of little persuasive value. He said, “I appreciate the [appellant] says it’s the pattern of behaviour and it goes to credit.”[6]
[6] T 18.14–18.
Fourthly, the Member noted that the appellant made an application for cross-examination and “it’s very late in the piece as well”. He said the investigations should have been provided to the respondent and “I was informed at the bar table today … that there was some mention of – or foreshadowing of an application to cross-examine the [respondent] at the preliminary conference …”.[7]
[7] T 18.20–28.
The Member considered secondly the schedule of photographs. The Member noted that the appellant’s submission was that the photographs were relevant in terms of determining whether the respondent had post-injury employment, post-injury earnings and whether in fact she could obtain alternative employment based on the demonstrated functionality and capacity shown in the photographs.
The Member declined to grant leave to rely upon the photographs for the reasons that follow.
Firstly, he said the documents were provided “so late in the piece” that the Commission was being asked to consider “on the fly” quite an extensive number of photographs.[8]
[8] T 20.30–33.
Secondly, he appears to have accepted the respondent’s submission that she was not given an opportunity to address the photographs which were served late in the piece and carried little weight.
Thirdly, he accepted the respondent’s submission that she did not know when the photographs were taken.[9]
[9] T 21.22–30.
Fourthly, in refusing leave to rely on the documents (photographs), the Member said that to have proper weight and be admitted, the source of the information should have been confirmed.
Fifthly, the Member said that he could not accept the documents in the current form because it was prejudicial to the respondent and too late.[10]
[10] T 22.15–17.
The final set of documents related to the screenshots of text messages between the respondent and the person alleged to have assaulted her. The Member said of these that he could not see the provenance of them, that they were late, and the text messages were not accepted by the respondent. He said:
“To have any weight at all there should [have] been some statement or some other forms of identification … Even something very basic.”[11]
[11] T 26.5–9.
The Member summarised those documents which were admitted from the AALD dated 7June 2024 and those which were excluded.
GROUNDS OF APPEAL
The appellant relies on two grounds of appeal, namely:
(a) the Member committed an error of law in failing to provide adequate reasons for his finding (Ground One), and
(b) the Member has erred in exercising his discretion when refusing to admit the AALD (Ground Two).
TIME
The respondent worker does not dispute that the application for leave to appeal has been brought within time and in accordance with the requirements of s 352(4) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act).
THRESHOLD
The respondent disputes that the monetary threshold requirements as set out in s 352(3) of the 1998 Act have been met. She submits that the appeal concerns the Member’s decision as to whether certain documentary evidence was to be admitted into the proceedings. As the Member did not make any decision regarding an amount of compensation, an amount of compensation is not in issue on the appeal. The only issue on appeal is whether the Member exercised his discretion according to law.
The respondent submits that the requirements of s 352(3) are not satisfied.
The appellant quotes the decision of Deputy President Snell in Canterbury Bankstown City Council v Gazi (No. 2).[12] In that decision, Deputy President Snell quoted from an earlier decision of Grimson v Integral Energy[13] and from NSW Department of Education and Communities v Colefax[14] to the effect that “[t]he ‘… amount of compensation at issue on appeal’ is determined by reference to the amount of any monetary award made by the [Member] or, where no monetary award is made, the amount of the claim as particularised by the [worker].”
[12] [2023] NSWPICPD 77, [30]–[31].
[13] [2003] NSWWCCPD 29.
[14] [2012] NSWWCCPD 63.
I adopt the reasoning of Deputy President Snell.
INTERLOCUTORY DECISION
The parties do not dispute that the present decision is interlocutory and that s 352(3A) of the 1998 Act applies.
Section 352(3A) provides as follows:
“There is no appeal under this section against an interlocutory decision except with the leave of the Commission. The Commission is not to grant leave unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute.”
The appellant submits that the admission of the AALD containing the surveillance footage and Instagram posts as to the respondent worker’s modelling is relevant to credit, incapacity and the weight placed on medical opinions containing contrary histories. The appellant submits this evidence is “necessary or desirable for the proper and effective determination of the dispute”.
In relation to the “text message thread”, the appellant says that those messages between 24January 2022 and 29March 2022 are relevant to credit and to s 11A of the Workers Compensation Act 1987 (in particular reasonableness).
For those reasons the appellant submits that the material is necessary or desirable for the proper and effective determination of the dispute.
The respondent submits that the AALD was lodged more than six weeks after the preliminary conference which occurred on 24 April 2024. Her objections were based on the following:
(a) The material was filed and served very late in the process and was contrary to the practice and procedure of the Commission and was highly prejudicial to the respondent worker.
(b) The material had little, if any, probative value as there were issues as to the authorship of the text thread for example. The text message thread was said to be between the worker and the assailant but there was no statement to that effect and no identification of the telephone numbers which had been screenshot.
(c) The schedule of photographs was posted on an Instagram account of the photographer who had taken the photographs, but there was no verification as to when they were taken or to whom they belonged.
(d) The surveillance material did not show any activity that was inconsistent with the respondent worker’s evidence.
The respondent’s submissions on this point go to the issue of “the proper and effective determination” of the dispute but do not address whether it is necessary or desirable that leave be granted to agitate the interlocutory determination to exclude the material.
The effect of the Member’s decision is to prevent the appellant from relying on evidence in limine without any consideration of its admissibility or merit. In my view it is both necessary and desirable for the proper and effective determination of the parties’ dispute to consider whether the Member’s decision to exclude certain evidence as a threshold matter was correct. For this reason I grant leave to the appellant to proceed with the appeal.
ON THE PAPERS
The parties agree that the appeal can be determined on the papers.
Section 52(3) of the Personal Injury Commission Act2020 (the 2020 Act), together with Procedural Directions PIC2 and WC3 provide that I may be satisfied that the documents and the submissions of the parties provide me with sufficient information so that the appeal can be determined on the papers without holding any formal hearing. I am satisfied in this matter and propose to determine the matter on the papers without holding any conference or formal hearing.
NATURE OF THE APPEAL
The appellate jurisdiction conferred by s 352 of the 1998 Act relevantly provides:
“(5) An appeal under this section is limited to a determination of whether the decision appealed against was or was not affected by any error of fact, law or discretion, and to the correction of any such error. The appeal is not a review or new hearing.”
GROUND ONE – EROR OF LAW
Appellant’s submissions
The appellant refers to the decision of M & S Shipman Pty Limited v Matters[15] where Deputy President Fleming said:
“To succeed on the ground of ‘inadequate reasons’ it will be necessary for the appellant to demonstrate not only that the reasons are inadequate but that the inadequacy sufficiently demonstrates that the [member] has failed to exercise his or her statutory duty to fairly and lawfully determine the application.”
[15] [2003] NSWWCCPD 19, [84].
The appellant submits that a failure to address inconsistencies in the evidence can constitute a failure to give proper and adequate consideration to all the relevant evidence and to be an error of law.[16]
[16] Citing Symbion Health Limited (formerly Mayne Group Limited) v Ford [2008] NSWWCCPD 13, [81]–[83].
The appellant submits further that the Member was required to engage with conflicting medical evidence by properly analysing it to determine which is preferred and why.
The appellant refers to the Procedural Direction PIC3 – Documents and late documents (PD PIC 3), in particular clause [28] thereof, which identifies the matters to be considered in determining an application for leave to admit late documents.
Having regard to those matters, the appellant submits that any prejudice due to the admission of the documents in the AALD could have been cured by the respondent worker providing a supplementary statement by 4 July 2024.
The respondent made no submission as to actual prejudice if leave were granted and the Member’s determination contained no reference to actual prejudice.
The appellant submits that the Member failed to consider or provide reasons as to the prejudice that the appellant would suffer if leave were not granted. The appellant thereafter quotes from the respondent worker’s statement of 4 January 2023, and from various medical notes.
The appellant submits that there was significant prejudice to the appellant if the documents were not admitted and that the Member failed to give reasons, so the appellant submits, as to why the prejudice to the respondent worker was greater than that to the appellant.
On the issue of the timely resolution of the dispute, the appellant submits that the respondent worker made little or no submission as to how the admission of the documents would affect the timely resolution of the dispute. The appellant also submits that the Member failed to provide reasons as to how the admission of the AALD would affect the timely resolution of the proceedings. The appellant submits that the proceedings would not have been delayed as the matter was to be stood over for further hearing.
Finally, the appellant submits that the Member provided no reasons as to the potential injustice to the respondent if the AALD was admitted.
Respondent’s submissions
The respondent submits that the Member gave adequate reasons for his decision. She then quotes from the transcript at T 17.31, T 22.2–19 and T 26.3–18 (substantially quoted above).
The respondent submits that the reasons are clearly set out and clearly adequate. They expose the process of reasoning and deal with the issues as they were raised by both parties.
GROUND TWO – ERROR IN EXERCISING THE DISCRETION
Appellant’s submissions
The appellant quotes House v R.[17]
[17] [1936] HCA 40; 55 CLR 499, 504–505.
The appellant submits that the Member has failed to take into account the material fact that the respondent worker suffered no actual prejudice. The appellant submits that the Member failed to take into account the material fact that the respondent worker had six weeks to respond to the evidence (if it was admitted) prior to the hearing on 27 July 2023 (sic, 2024).
Respondent’s submissions
The respondent submits that the AALD contained many attachments, some of which were not objected to. It is therefore incorrect to say that the Member refused to admit the AALD. It was only the documents objected to that were rejected.
The respondent refers to s 42 of the 2020 Act, which requires Members of the Commission to seek to give effect to the guiding principle of the Commission which is to facilitate just, quick and cost effective resolution of the real issues in dispute.
The respondent submits section (sic, rule) 67 of the Personal Injury Commission Rules 2021 (the Rules) sets out the rules regarding the lodgement of documents. It is submitted the requirements are designed to ensure that both parties know what the dispute is and the evidence on which each party relies. The intention is to ensure the objects of the legislation are met.
Rule 67(4) confers on the Member a broad discretion to allow late evidence if the Member is satisfied that it is necessary to do so in the interests of justice. The interests of justice include ensuring that the evidence put before the Commission will assist it by being probative and logical.
The respondent submits:
“It is well established that for an appellate court to interfere with a discretionary decision and substitute its own decision, some error must be identified in the exercise of the discretion. The decision maker would have to have acted on a wrong principle, allowed extraneous or irrelevant matters to have guided him or affected him in the exercise of the discretion, or that he failed to have taken account of some material consideration or the decision was unreasonable or plainly unjust.”[18]
[18] Respondent’s submissions, [31].
The respondent submits that no such error is identified.
The respondent submits that the determinative matter that persuaded the Member not to admit the late material was its lack of probative value. The Member was fully aware that not all of the material was objected to by the respondent worker and that the admitted material required further evidence from the respondent worker.
The Member was satisfied that the evidence sought to be adduced that was objected to lacked any probative value. He listened to the submissions made on behalf of the appellant employer but was not persuaded by them. This was open to the Member and was within the broad discretion available to him.
The respondent submits that the Member did not act on a wrong principle, did not allow an extraneous or irrelevant matter to guide him, did not make a mistake of fact, did not fail to take into account material considerations and his decision was not unreasonable or plainly unjust.
Consideration
It is convenient to deal with both grounds of appeal at the same time.
The appeal concerns a matter of practice and procedure. I am conscious an appeal on a matter of practice and procedure requires an appellate tribunal when reviewing the Member’s decision to proceed with “added restraint” and “particular caution”.[19]
[19] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30, [36] (per Gageler J as he then was), referring to Adam P Brown Male Fashions Pty Limited v Philip Morris Inc (1981) 148 CLR 170, 176–177 citing Re Will of Gilbert (1946) 46 SR (NSW) 318, 323.
The Member’s reasons for his determination are to be considered in the context of ss 42 and 43 of the 2020 Act, r 67(4) of the Rules and PD PIC 3.
Rule 67(4) requires the discretion with respect to the AALD to be exercised in favour of receiving the evidence if the Commission is satisfied that it is necessary in the interests of justice to allow a party to introduce evidence that it would be prevented from introducing because of the operation of subrule (2).
PD PIC 3 has been made by the President pursuant to s 21 of the 2020 Act.
Clause 28 of PD PIC 3 provides:
“In determining an application for leave to admit late documents, the following matters will be considered:
(a) the interests of justice;
(b) the requirements of the workers compensation legislation and [the Rules];
(c) the submissions of the parties including the adequacy of the moving party’s reason/s for the delay in lodging the document/s;
(d) any prejudice that would result from granting or refusing leave to admit the documents;
(e) the effect, if any, on the timely resolution of the dispute, and
(f) the objects of the Commission under sections 3 and 42 of the [2020] Act.”
The Member’s reasons do not advert to the interests of justice, which is an express consideration of both r 67(4) and cl 28 of PD PIC 3.
There is no explicit consideration or mention by the Member that he has considered what the interests of justice required in relation to the documents.
A reasonable indication of what the Member considered in making his determination are those matters to which he made express reference. In the absence of reference to the interests of justice I infer that the did not take that issue into account.[20]
[20] Waterways Authority v Fitzgibbon [2005] HCA 57, [130].
In my view the Member failed to take into account a material matter which he was required to consider, namely the interests of justice. The discretion has miscarried.
For the reasons that follow, in the interests of justice I re-exercise the discretion and direct that the appellant be permitted to rely on the documents notwithstanding non-compliance with r 67(2).
Firstly, the effect of an order declining to allow the appellant to rely on the documents if otherwise admissible means that evidence which would otherwise be available will forever be unavailable. This is because such evidence would not satisfy s 352(6) of the 1998 Act and any appeal to the Court of Appeal would be limited to a point of law which would preclude the evidence being received and considered by that Court.
Secondly, there is no prejudice to the respondent worker caused by the delay which in relation to the surveillance material at least is quite minimal.
Thirdly, the proceedings were not going to be concluded on 13 June 2024. The adjourned proceedings could be resumed at some time sufficient to enable the respondent to secure evidence in answer to the additional material.
Fourthly, the prejudice contemplated is prejudice derived from the lateness of the evidence becoming available, not from the content of the evidence. The respondent made no case before the Member nor in the submissions on appeal that the delay occasioned her any prejudice.
Fifthly, PD PIC 3 at cl 28(d) provides that it is necessary to consider “any prejudice that would result from granting or refusing leave to admit the documents”. The prejudice to the appellant is extreme. There is no prejudice to the respondent from the lateness that cannot be met by an extension of the time to resume the hearing.
Finally, s 42 of the 2020 Act provides that the guiding principle is that the Act and the Rules will in their application to proceedings “facilitate the just, quick and cost effective resolution of the real issues in the proceedings”.
Plainly the real issues in these proceedings include causation and incapacity. The appellant’s evidence may in the event carry little weight, but a just determination of the real issues requires that the material be available to the Commission.
CONCLUSION
Pursuant to s 352(3A) grant leave to the appellant to appeal the interlocutory determination refusing leave to rely on certain documents.
Grounds 1 and 2 of the appeal are made out.
The Member’s determination of 13 June 2024 is revoked. The matter is remitted for allocation to an alternative member for determination.
I direct that the documents the subject of the AALD dated 7 June 2024 not previously received should be available notwithstanding non-compliance with r 67. Whether any particular document should be admitted is a matter for determination of the Member hearing the proceedings having regard to s 43 of the 2020 Act.
Geoffrey Parker SC
ACTING DEPUTY PRESIDENT
6 November 2024
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