Issue 1: February 2018

The issues in this appeal concerned:

(a) whether the Arbitrator erred in finding Mr Gajkowski is taken to be a worker pursuant to cl 15(1)(c) of Sch 1 to the 1998 Act by:

(i) misconstruing the term “engaged” in cl 15(1) and failing to consider whether Mr Gajkowski was contractually bound to take part as an entertainer in any public performance;

(ii) misconstruing the term “reward” in cl 15(1) by wrongly finding that it included the opportunity to win prize money or the opportunity to advance one’s career by participation in a competition, and

(iii) misconstruing the term “entertainer in any public performance” in cl 15(1)(c) by failing to find that it refers to a person who participates in a performance with an aesthetic element, and not to a person competing in a sporting event.

(b) whether ABCRA is a person who conducted or held a public performance, and

(c) whether ABCRA and CSS are liable equally for the payment of the compensation awarded.

Held: The Arbitrator’s determination was revoked and substituted with an award for ABCRA and CSS.

Fresh Evidence

1. ABCRA sought leave to rely on a further statement of Mr Jones, the executive officer of ABCRA, pursuant to s 352(6) of the 1998 Act. ABCRA submitted that this evidence was needed to clarify the evidence concerning the financial arrangements between ABCRA and CSS for the rodeo event. It went to the question of apportionment of liability. CSS did not object to the admission of the fresh evidence but Mr Gajkowski did.

2. Mr Jones had provided two statements that were in evidence before the Arbitrator. The evidence in Mr Jones’ new statement was available and could have reasonably been obtained before the arbitration proceedings. Therefore, the first limb of the test in CHEP Australia Limited v Strickland [2013] NSWCA 351; 12 DDCR 501 could not be satisfied and was not relied on. ([62])

3. Given CSS’s concession (made after the application to admit fresh evidence was filed) that it was solely responsible for the payment of prize money and the unchallenged evidence that all entry fees to the Camden Show were retained by CSS, subject to a small fee being paid by ABCRA for its services, the purported fresh evidence added nothing to the evidence already before the Commission dealing with the financial arrangements between CSS and ABCRA. It followed that there could not be any substantial injustice by the failure to grant leave for the admission of Mr Jones’ third statement. The second limb of the test in Strickland could not be satisfied. It followed that the application to admit fresh evidence on appeal was rejected. ([74]-[75])

(CHEP Australia Limited v Strickland [2013] NSWCA 351; 12 DDCR 501 applied)

Ground One - Alleged misconstruction of the word “engaged”

4. Mr Gajkowski conceded that in order for cl 15 to have application there must be an agreement between the putative worker and the putative employer for valuable consideration. ([124])

5. In Parsons v Southern Tableland and South Coast Racing Association 1 NSWLR 47 (Parsons), it was held that an agreement for valuable consideration must require the performance of work by the person claiming to be the worker and a promise in return for legally enforceable consideration. A pattern of providing sums to jockeys by way of gratuities, the amounts of which were at the owner’s discretion and varied depending on whether the horse won, was not an agreement for valuable consideration. ([126])

6. The Arbitrator erred in failing to determine the question of whether Mr Gajkowski entered into a legally enforceable agreement. His description of a constructive agreement, with “the organisers”, fell well short of establishing that a legally enforceable agreement had been entered into and with whom. ([127])

7. The President observed that the prize money payable for a winning ride or a place in the rodeo was the only potential fee or reward. As CSS conceded that it was solely responsible for the payment of prize money, if there was a legally enforceable agreement it could only be with CSS. ([128])

8. The evidence did not support the finding of a legally enforceable agreement. Mr Gajkowski was free to withdraw from the rodeo at any point in time. While there was an expectation of prize money to a placegetter the amount of prize money was variable and at the discretion of CSS. The amount was dependent on the entry fees and competition fees collected. That variable and discretionary nature of the prize money payable was strongly against a finding that there was an agreement for valuable consideration. ([129]-[133], [135])

(Parsons applied)

9. Mr Gajkowski’s agreement to participate in the rodeo was not an agreement for valuable consideration. It followed that the Arbitrator erred in concluding that Mr Gajkowski was engaged within the meaning of that term in cl 15. ([136]-[137])

The meaning of “engaged for fee or reward” 

10. The President made the following alternative findings, if Mr Gajkowski was “engaged”.

11. The President rejected Mr Gajkowski’s submission that Bushby v Morris [1980] NSWLR 81 (Morris) was wrongly decided and the submission that no proper reasons were given. The findings in that case more than adequately exposed the path of reasoning that lead to the conclusion. Section 6(10) of the 1926 Act (which that case considered) is significantly similar in its terms to cl 15 for the analysis of s 6(1) to be relevant and persuasive. The findings in Morris are consistent with the findings in Parsons; namely, to satisfy the statutory provision the promise to ride involves a consideration in money or money’s worth. That requirement cannot be satisfied where any payment or reward is dependent on winning. ([159]-[165])

12. The Arbitrator’s decision not to follow Morris and Parsons (which he referred to as the “jockey cases”), notwithstanding that the relevant provisions had the same statutory requirement of riding or preforming for ‘fee or reward’, was wrong. The Arbitrator wrongly found that to construe the relevant provisions consistently would place a “hobble” on cl 15 by limiting it to a construction that required a “cash payment”. Firstly, no party submitted that satisfaction of cl 15 involved the requirement of a cash payment before the provision could be satisfied. Secondly, the Arbitrator’s conclusion was not adequately explained. Thirdly, as a matter of statutory construction, where a word is used consistently in legislation it should be given the same meaning. ([165]-[166])

(Craig Williamson Pty Ltd v Barrowcliff [1915] VicLawRp 66; [1915] VLR 450 applied)

13. There is no relevant distinction between the present legislation and that considered in Morris. Parsons and Morris were relevant and biding on the Commission in its construction of cl 15 and the Arbitrator erred in finding that they were of limited value. In particular, the Commission was bound by Parsons and was compelled to find that the expression “engaged to” when coupled with “for fee or reward” means a legally binding agreement is required by the putative worker to perform work. ([167])

14. Any contract in place was not in return for valuable consideration because the opportunity to win prize money is not money or money’s worth - it was merely an opportunity to win prize money. Whether Mr Gajkowski was riding in the rodeo “for fee or reward” is to be determined objectively based on an objective assessment that applies equally to all of the participants in the event. Mr Gajkowski’s personal motivation to advance his career was irrelevant. ([172])

15. Mr Gajkowski submitted that the term “reward” encompasses the possibility of a reward or the opportunity to gain a reward. That construction read the words “the possibility of a” or “the opportunity to gain a” into cl 15. Reading such words would amount to an attempt to “fill gaps” or rectify a casus omissus which would be at variance with the language in fact used by the legislature, and therefore was not permissible. ([174]-[176])

(Taylor v Owners – Strata Plan No 11564 [2014] HCA 9 applied)

16. In circumstances where Mr Gajkowski may have come away from the rodeo with nothing by way of fee or reward, the clear meaning of the text itself cannot be satisfied. His participation in the rodeo was not an engagement for reward; at best, it could be the possibility of an opportunity or a contingent possibility of a reward. That is insufficient to attract the benefits of cl 15. The Arbitrator erred by misconstruing the term “reward” in cl 15(1) by wrongly finding that it included the opportunity to win prize money or the opportunity to advance one’s career by participation in a competition. ([177]-[179]).

17. Mr Gajkowski’s agreement to participate in the rodeo was not an agreement for valuable consideration. Any prize money payable was contingent and discretionary. It followed that Mr Gajkowski was not “engaged for fee or reward”. ([181])

Was Mr Gajkowski engaged as an “entertainer”?

18. The Arbitrator’s construction of cl 15(1)(c), that because members of the public attended the rodeo to enjoy the skill of the riders and the many “thrills and spills” that it was “apparent” that the rodeo was a public performance, was erroneous. The Arbitrator failed to consider the word “performance” in cl 15(1)(c) as applied in Newstead v Gulgong RSL Club Ltd (1995) 12 NSWCCR 102. He erred in focusing attention on the entertainment aspect of bull riding without considering whether it was a performance within the meaning of cl 15. ([201])

19. The first two paragraphs of cl 15(1) are concerned with boxers, wrestlers or referees and the second two are concerned with entertainers. If cl 15(1)(c) is given the broad meaning Mr Gajkowski contended there would be no need, for example, for cl 15(1)(a). That is because, on Mr Gajkowski’s construction, a boxer or wrestler who is boxing or wrestling in a contest in a public place where the public is admitted on payment of a fee or charge would also be an entertainer in a public performance within the meaning of cl 15(1)(c). To ensure cl 15(1)(a) has work to do, the word entertainer has to be construed in such a way that it does not include a boxer or wrestler. ([204]-[205])

20. The President was not satisfied that it had been established that Mr Gajkowski was an entertainer. Whether bull riding afforded diversion or amusement was irrelevant, unless it could be established that bull riding was a performance. ([207]-[211])

(Brady v Upper Hunter P&A Association [1954] WCR 95 applied)

21. The President observed that paying a fee to participate in the rodeo, as Mr Gajkowski did, would be inconsistent with characterising bull riding as a performance. ([215])

22. To construe bull riding as a performance would be to give the legislation a construction that is unreasonable or unnatural. That is because it would read down cl 15 from a provision affording benefits to performers to those engaged in sporting contests or contests generally. It followed that the beneficial construction of legislation argument was rejected. ([219])

(ADCO Constructions Pty Ltd v Goudapple [2014] HCA 18; 254 CLR 1; Kowalski v Repatriation Commission [2011] FCAFC 43; Jones v Qantas Airways Ltd [2017] NSWWCCPD 11; Sarac v Itxcel Pty Ltd [2015] NSWWCCPD 32; IW v City of Perth [1997] HCA 30, 191 CLR 1 considered and applied)

23. At the time of the injuries complained of, Mr Gajkowski was not an entertainer. The Arbitrator’s finding to the contrary was an error. Ground one was upheld. ([221]-[222])

Ground two - Did ABCRA conduct or hold a public performance?

24. In the alternative, the President made the following findings.

25. The question of whether ABCRA held or conducted the rodeo depended on whether it performed an active role in bringing the event about. The Arbitrator’s finding that ABCRA played an active role was based on a number of significant factual errors.

26. ABCRA had no control over the event other than to ensure that the relevant rules and regulations were met prior to the staging of the event. ABCRA’s role was limited – at most, if not all of what it did occurred before the event. The Arbitrator’s findings with respect to the retention of competition fees, the payment of prize money, decisions regarding the effects of weather on the event proceedings, the provision of judges, the degree of control over which events were held, and the degree of control over who competed in the rodeo, were either wrong or not supported by the evidence. The cumulative effects of errors made by the Arbitrator in the fact finding process undermined his ultimate conclusion. It followed that the Arbitrator’s findings that ABCRA and CSS jointly and in equal proportions conducted or held the rodeo had to be revoked and the issue re-determined. ([247]-[260])

27. CSS took an active role in bringing about the rodeo. CSS paid prize money to competitors. It set the level of competition fee. CSS was affiliated with ABCRA by the payment of an annual fee. CSS had a rodeo subcommittee to organise the rodeo at the Camden Show. CSS arranged for the rodeo stock, albeit from contractors recommended and approved by ABCRA. CSS recruited volunteers who assisted in the rodeo office, set up advertising banners and assisted generally around the stock yards. CSS contracted with and paid the judges (it selected from a list of suitably qualified judges provided by ABCRA), protection, clowns and other specialist workers. While, ABCRA provided the rules for the conduct of the rodeo and safety initiatives. ABCRA assisted with advertising and registration of competitors. ABCRA’s role was administrative and facilitative - it did not have an active role bringing about the rodeo. Therefore, ABCRA did not hold or conduct the rodeo - CSS did. It followed that ground two was upheld. ([264]-[273])

(Taren Point Bowling and Recreation Club Limited v Shapter [1982] 1 NSWLR 219; GIO General Ltd & Others v Blacktown RSL Club Ltd (1996) 13 NSWCCR 668 applied)

Ground three - Apportionment of liability 

28. ABCRA’s involvement in the rodeo was administrative and facilitative. It had safety obligations in relation to the staging of rodeo events, which CSS chose to accept and adopt. That did not mean that it had an active role in holding or conducting the event. CSS played the active role in holding and conducting the rodeo. It followed that, if the President was wrong in relation to grounds one and two, he found CSS to be 100% liable for any compensation payable. ([281]-[283]).

Conclusion

29. At the time of his unfortunate accident, Mr Gajkowski was not a person engaged for fee or reward to take part as an entertainer in any public performance in a place of public entertainment to which the public is admitted on payment of a fee or charge. Consequently, he was not, for the purposes of cl 15(1) of Sch 1 to the 1998 Act, taken to be a worker employed by the person conducting or holding the rodeo contest in which he was competing. ([284])

Determination

1. The grounds of appeal in this appeal were essentially the same as those argued and decided in Gajkowski No 1. For the reasons given in that matter, this appeal was also upheld. ([7])

The issues on appeal were whether the Arbitrator erred:

(a) when he failed to consider that a determination of whether there was a consequential injury to the lumbar spine would not result in any judgment that conflicts with the earlier determination (Ground 1);

(b) in failing to consider that there could not be an estoppel in changing circumstances (Ground 2);

(c) when he failed to appreciate that a claim for a resulting condition in 2011 was not the same claim as one for a resulting condition in 2016 (Ground 3);

(d) when he reversed the onus by requiring the appellant to establish that there were reasons why the claim for consequential injury was not pursued in the earlier proceedings (Ground 4);

(e) when he concluded that the claim for consequential injury could have been put in the earlier proceedings despite his own finding that there was no such medical evidence in the earlier proceedings (Ground 5);

(f) when he reversed the onus by considering that the appellant could have filed the application and Reply from the earlier proceedings (Ground 6);

(g) when he failed to follow the clear authority from Bouchmouni v Bakhos Matta t/as Western Red Services [2013] NSWWCCPD 4 (Bouchmouni) which held that no estoppel arose in identical circumstances (Ground 7);

(h) when he failed to identify a public policy purpose which justified the finding of an estoppel (Ground 8);

(i) when he considered the fact that a claim could have been brought in earlier proceedings was sufficient to establish an estoppel (Ground 9);

(j) by relying upon s 22 of the 1998 Act when that section had not been relied upon by the respondent and the appellant was not given an opportunity to make submissions concerning the relevance of that section (Ground 10), and

(k) when he failed to consider that these proceedings would have been brought in any event regardless of whether the issue had been raised in the earlier proceedings (Ground 11).

Held: The Certificate of Determination dated 7 September 2017 was set aside and the matter was remitted to the Registrar for referral to an AMS to assess the degree of permanent impairment in the right lower extremity (knee) and lumbar spine.

Ground 1

1. Deputy President Wood held that it was clear from the Certificate of Determination that the Arbitrator did not turn his mind to the question of whether a conflict or contradiction between a determination of this issue and the consent orders issued in the 2011 proceedings would result. The worker said that this is a critical factor ignored by the Arbitrator. The argument put forward is that Bruce v Grocon Ltd [1995] NSWCC 10; 11 NSWCCR 247 (Bruce) is authority for the proposition that “[Neilson J] identified the possibility of an inconsistent judgment as being an essential element of estoppel”. Where there is a potential for a conflicting judgment, issue estoppel and res judicata estoppel will arise, but the decision in Bruce (or any other authority) to be authority that it is also an essential element of an Anshun estoppel. ([130])

2. Deputy President Wood held that in the circumstances of this case, the answer to the consideration of the likely judgment outcome to be included must be that there would be no conflict or contradictory outcome. While it may very well be a matter required for consideration, the absence of such a conflict does not prevent an Anshun estoppel applying. Ground 1 of the appeal was not made out. ([131]–[133])

Ground 2

3. The worker asserted that the claim available in 2011 was not the same claim as the claim available in 2017. At [86] of his reasons, the Arbitrator said “whether the applicant’s condition has deteriorated since 2011 is neither here nor there”. Whether the claim can be categorised as a claim in changing circumstances was a matter raised in the proceedings and needed to be considered in a determination of whether an estoppel arose. The Arbitrator erred in disregarding the issue. ([134]–[140])

(Rail Services Australia v Dimovski [2004] NSWCA 267; 1 DDCR 648 at [58]; Roche v Australian Prestressing Services [2013] NSWWCCPD 7 at [32] referred to)

Ground 3

4. This ground was an extension of Ground 2. For the reasons in Ground 2, it was unnecessary to deal separately with this allegation. ([141])

Ground 4

5. The principles enunciated in Ling v Commonwealth [1996] FCA 1646; 68 FCR 180 (Ling), Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 (Habib), Champerslife Pty Ltd v Manojlovski [2010] NSWCA 33; 75 NSWLR 245 (Manojlovski) and Conference & Exhibition Organise Pty Ltd v Johnson [2016] NSWCA 118 (Johnson) now adopt a broader approach than exemption only in special circumstances to avoid estoppel. The first step is to establish the requisite identity of the issue with the issue in the previous proceedings. If that is established then only after a consideration of all of the facts and circumstances, a determination can be made as to whether the failure was unreasonable and an estoppel order can be made. ([145]–[146])

6. Deputy President Wood noted that it is fundamentally necessary to examine the earlier pleadings and the terms of the award to determine whether the subsequent claim is barred. ([149])

(Lee v Commonwealth (1971) 18 FLR 400 at [162] referred to).

7. In order for the Arbitrator to determine whether the estoppel was warranted, he was required to identify what claims were made in the 2011 proceedings and whether the consequential lumbar claim was closely identified with any claim in the earlier proceedings. If the answer to that was in the positive, he was then required to examine all of the facts and circumstances to establish whether the failure to bring the claim was unreasonable. It was difficult to see how those principles could be applied without the material that was before the Commission in the 2011 proceedings when the matter resolved by consent orders, rather than by judgment. ([150])

8. It was not a matter for the worker to establish she could not have brought her claim in the earlier proceedings or that she acted reasonably in refraining to do so. It was a matter for the employer to show that she should have brought the claim, and her failure to do so was unreasonable. It was a matter for the employer to adduce the evidence required to establish those matters. This ground was made out. ([151]–[152])

Ground 5

9. The worker asserted that she could not pursue her current claim in the 2011 proceedings because she did not have sufficient medical evidence. While it might or might not be said that the evidence in the 2011 proceedings fell short of sufficient evidence to discharge the onus of proof, that was not to say that the worker could not, with due diligence on the part of her legal representatives, have prosecuted her claim in 2011. Deputy President Wood held that the Arbitrator did not err in this conclusion and that this ground was not made out. ([153]–[156])

Ground 6

10. The Deputy President held that the Arbitrator had clearly fallen into error. The task before the Arbitrator was to apply the analysis in [5] above. To regard what was pleaded as “immaterial” was to ignore the steps identified by the Court of Appeal in Ling, Habib, Manojlovski and Johnson. It is not sufficient to say that the issue is one of whether there was a state of fact relied upon that was available in the 2011 proceedings. Identifying the common fact or issue is but one step in assessing whether the issue is so relevant to the issue in the previous proceedings that it was unreasonable not to pursue it. Deputy President Wood found that the Arbitrator had reversed the onus of proof and this ground had been made out. ([158]–[159])

Ground 7

11. Deputy President Wood observed that neither party referred to Bouchmouni in their oral or written submissions to the Arbitrator. The Arbitrator did address the matters raised in Bouchmouni in his reasons. The Deputy President observed that he correctly identified that the facts were similar to the present case, but that the argument was that an award for the respondent in respect of “injury to the lumbar spine” included any consequential condition in the lumbar spine. Further, while an estoppel was raised, it was on that basis and not on the basis of an Anshun estoppel. This ground of appeal was not made out. ([162]–[163], [166])

Ground 8

12. The Arbitrator referred to s 22 of the 1998 Act, being the objectives and general functions of the Authority under workers compensation legislation. The “Authority” is defined in s 4 as the State Insurance Regulatory Authority (SIRA). Deputy President Wood could not see that the functions of SIRA to ensure the timely and effective resolution of disputes as provided for in s 1(d) extends to a public policy consideration that might or ought to be taken into account for the purposes of a determination as to whether an Anshun estoppel should be imposed by the Commission. ([172]–[175])

13. Deputy President Wood was satisfied that the Arbitrator did turn his mind to the question of public policy, and accepted the submission from the employer that reduction of administrative costs was a good public policy. This ground of appeal therefore failed. ([179]–[180])

Ground 9

14. The Deputy President held that the Arbitrator turned his mind to more than the question of whether the worker could have brought her claim in 2011. The fact that she did not offer a reason for refraining to do so, his view on the Commission’s functions (however inaccurately based on s 22 of the 1998 Act), together with the public policy that all claims should be brought together were all matters that were appropriate for him to consider in assessing whether she should have brought her claim in 2011. This ground of appeal had not been made out. ([185]–[186])

Ground 10

15. It was apparent from the Arbitrator’s reasons that his decision was underpinned by such obligations the Authority (rather than the Commission) has that are encompassed by s 22. Given such reliance, the proper course ought to have been to invite both parties to make submissions. The Deputy President did not accept that the worker had the opportunity to properly submit on the relevance and application of s 22 and this ground was made out. ([190]–[191])

Ground 11

16. As Deputy President Wood had found errors with respect to other grounds, it was unnecessary to determine this ground. ([195])

The issue of estoppel

17. Anshun estoppel can apply in a claim for workers compensation. It is essential to consider whether a determination of the matter will result in a conflict with or contradict the previous determination. If it would, then an estoppel will apply. If it would not, then an Anshun estoppel can apply in certain circumstances. It is not sufficient to establish that the claim could have been raised in the earlier claim and therefore should have been. The issue to be determined must be whether there is the “requisite identity” with the first proceedings. If it overlaps in some respects but not in others, it is less likely to be “closely relevant.” If it has the requisite identity, was it unreasonable not to pursue it in the earlier proceedings? The test of unreasonableness requires a thorough examination of all the facts and circumstances of the case. ([196]–[199])

18. Deputy President Wood found that an estoppel did not arise in this case. She found that the issue for determination in these proceedings was not of the requisite identity with the issue in the 2011 proceedings so as to establish the employer’s case that an estoppel arose. ([213]–[216])

The issue of a consequential condition

19. After discussing to the evidence, Deputy President Wood re-determined the matter, finding that the worker suffered from a consequential condition in her lumbar spine as a result of the altered gait caused by her right knee injury on 3 March 2010. ([217]–[262])

The issues on appeal were whether:

(a) the Arbitrator erred in making an award for the respondent (Ground No 1);

(b) the Arbitrator erred in not finding a mechanism for injury (Ground No 2);

(c) the Arbitrator’s decision was outside his jurisdiction and ultra vires, in that the dispute should have been resolved by referral to an AMS (Ground No 3);

(d) the Arbitrator misdirected himself in regard to the medical conflict between Drs Mansfield, English and Breit (Ground No 4), and

(e) the Arbitrator erred in finding there was no contemporaneous evidence as to injury (Ground No 5).

Held: The appellant’s application to extend time pursuant to r 16.2(12) of the 2011 Rules was refused.

Threshold matters

1. The worker initially lodged an Appeal Application within time. However, it was non-compliant with the 1998 Act, the 2011 Rules and Practice Direction No 6 and was rejected by the Registrar, as was a second appeal application. The second application also did not address the issue of time, as it was filed out of time. The third appeal application was ultimately accepted and was outside of time. ([16]–[18])

2. Acting President Snell held that the presence of ‘exceptional circumstances’ is not a precondition for extending time, but is something which a Presidential member is required to consider in dealing with such an application for an extension of time. The worker’s submissions did not address the issue of whether ‘exceptional circumstances’ existed.  That an appeal may be rejected due to non-compliance with the procedural requirements, including those in Practice Direction No 6, is a circumstance that is “regularly” and “routinely” encountered. It is not exceptional. ([26]–[27])

(Bryce v Department of Corrective Services [2009] NSWCA 188; Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290; Gallo v Dawson [1990] HCA 30; 64 ALJR 458; Allen v Roads and Maritime Services [2015] NSWWCCPD 39, and Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2014] NSWCA 34 referred to)

3. The Acting President, after fully considering the appeal on its merits, held that the appeal would not succeed, even if time were extended. In those circumstances, there was no injustice to the worker if time was not extended. The application to extend time was refused. ([32]–[34])

Fresh Evidence

4. The appellant, on appeal, sought to rely on two medical articles as fresh evidence. Acting President Snell held that they were available and obtainable prior to the hearing, and did not satisfy the first limb of CHEP Australia Ltd v Strickland [2013] NSWCA 351; 12 DDCR 501. The worker’s submissions did not deal with the second limb, which the Acting President held was not satisfied. Acting President Snell concluded that the application to rely on fresh evidence would not have succeeded. ([58], [61]–[63])

Ground No 1 – the award in favour of the Department

5. Ground No 1, and the submissions in support of it, did not adequately identify a ground of appeal. The submissions on this ground did not seek to identify any specific error in fact finding. The pleading of this ground did not comply with Practice Direction No 6. It is necessary that a ground of appeal “identify, in a meaningful way, what is alleged to be the error in the judgment in the court below”. Ground No 1 failed to do this; it simply complained about the result and did not identify any appealable error. This ground could not succeed. ([75]–[76])

(Kowalski v Repatriation Commission [2011] FCAFC 43 at [21]; Icejade Pty Ltd t/as Ryan’s Hotel v Summers [2012] NSWWCCPD 31 at [21]; Preston v Randwick City Council [2012] NSWCA 178; 13 DDCR 342; Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 (Whitely Muir) at 506, and Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 (Raulston) referred to)

Ground No 2 – error in not finding a mechanism for injury

6. Although the circumstances of the injurious event were relatively uncontroversial, there was a clear issue between the parties, raised in the s 74 notice, regarding whether the worker suffered injury to the shoulders as alleged. This was a ‘liability’ issue which required determination by the Commission, before the matter could be referred to an AMS for assessment of the degree of permanent impairment, in compliance with s 321(4)(a) of the 1998 Act. ([86], [88])

7. The worker’s submissions dealing with Ground No 2 did not address whether the Arbitrator’s approach involved error on the basis of the principles in Raulston. This ground and the supporting submissions did not identify appealable error. Ground No 2 could not succeed. ([98])

(Wyong Shire Council v Paterson [2005] NSWCA 74; Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264; 13 DDCR 156, and Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79 applied)

Ground No 3 – alleged jurisdictional error

8. This ground raised two issues. One went to whether it was open to the Arbitrator to engage in the fact finding task that flowed from the s 74 notice, of determining whether the worker suffered the alleged injuries to the shoulders. The other went to the acceptability of Dr Breit’s evidence, whether there was error in the Arbitrator’s preference for Dr Breit’s opinion, and whether the reference to the worker’s employment history after 13 November 2012 involved error. ([106])

9. The task of determining whether the worker suffered the disputed injuries to his shoulders in the incident was one within the Commission’s jurisdiction, and was a ‘liability’ issue which required determination before the matter could be referred to an AMS pursuant to s 321 of the 1998 Act. ([107])

10. The description in the worker’s submissions of the disagreement between Dr Breit and Dr Mansfield about imaging, as a ‘medical dispute’ which it was “not the Arbitrator’s decision to resolve”, was misleading. An issue between expert witnesses about the reliability of MRIs does not constitute a ‘medical dispute’ within s 319 of the 1998 Act. Furthermore, it is not a matter on which the assessment in a MAC is “conclusively presumed to be correct” pursuant to s 326(1) of the 1998 Act. Ground No 3 could not succeed. ([108], [114])

Ground No 4 – the medical conflict

11. This ground alleged that the Arbitrator “misdirected himself” regarding the medical conflict between Drs Mansfield, English and Breit. The Acting President accepted the respondent’s submission that the Arbitrator had the power, and was required, to determine the ‘liability’ issue of whether there was an injury to the shoulders. It was open to the Arbitrator to accept the opinion of Dr Breit, and he gave reasons for doing so, which were not asserted to be inadequate. The Arbitrator did not err in accepting Dr Breit’s view that only the worker’s biceps were injured. Ground No 4 could not succeed. ([115], [122], [127]–[128])

Ground No 5 – contemporaneous evidence of injury

12. Contrary to how this ground was framed, the Arbitrator did not proceed on the basis that there was no contemporaneous evidence as to injury. The Arbitrator’s reasoning involved a consideration of the available material from treating medical practitioners, including the report of Dr Connolly, the radiologist, dated 7 January 2013, referred to in the worker’s submissions on this appeal. The worker’s submission that “the Arbitrator committed an error of fact by finding there was no contemporaneous evidence as to injury” was baseless. The Arbitrator properly referred to a line of appellant authority dealing with clinical material from doctors. ([133]–[134])

(Mason v Demasi [2009] NSWCA 227 and Qannadian v Bartter Enterprises Pty Ltd [2016] NSWWCCPD 50 referred to)

13. The way in which the Arbitrator dealt with the contemporaneous evidence was reasonably open to him and did not demonstrate error, consistent with the principles discussed in Whitely Muir and Raulston. Ground No 5 could not succeed. ([146]