Issue 1

This issue includes a summary of the December 2020 decisions.

These summaries are designed to provide an overview of the most recent Presidential decisions. They are not intended to be a substitute for reading the decisions in full, nor are they a substitute for independent research in relation to a particular issue or area of the law.

This issue, and previous issues, of On Appeal is available on the WCC website: http://www.pi.nsw.gov.au/

Decisions are published on AustLII, JADE and LexisNexis at the following websites:

http://www.austlii.edu.au/au/cases/nsw/NSWWCCPD/

http://www.jade.barnet.com.au/

http://www.lexisnexis.com.au

PRESIDENTIAL DECISIONS

Galal v University of New South Wales [2020] NSWWCCPD 74

Factual determination – whether material facts were overlooked or given too little weight; Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505, Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 discussed; s 4 of the 1998 Act – principles applicable to a determination of whether there is a contract of service – Zuijs v Wirth Brothers Pty Ltd  [1955] HCA 73; 93 CLR 561, Cabra-Vale Ex-Active Servicemen’s Club Ltd v Thompson  [2013] NSWWCCPD 49 discussed; cl 2 of Sch 1 to the 1998 Act – deemed worker – Scerri v Cahill (1950) 14 NSWCCR 389 discussed

Wood DP

21 December 2020

Facts

The appellant studied at the University of New South Wales (the respondent) and was awarded a Bachelor of Medical Science in 2016 and, in the following year, a Bachelor of Science (Honours).

In October 2017, the appellant applied for admission as a Higher Degree Research Candidate for the purpose of obtaining a Doctor of Philosophy (PhD). She was offered admission as a candidate on 8 November 2017. The appellant had also applied for, and was granted, an Australian Government Research Training Program scholarship (the research scholarship), which was administered by the respondent. In addition, the appellant was provided with a Research Training Program fees offset scholarship (the fees offset scholarship) as a contribution to her training fees.

On 9 May 2018, the appellant was performing her research activities, which involved injecting the tail of a mouse with a virus. On three occasions, she failed to find the vein with the syringe and the viral fluid sprayed onto her face. On the first two occasions, the fluid sprayed into her eyes and on the third occasion, the fluid went on her lips and mouth. Two days later, she developed symptoms of a high fever, blocked nose, enlarged lymph nodes, fatigue and nausea. She attended the St George Hospital Emergency Department. The appellant continued to suffer from symptoms of chronic fatigue, shaking and muscle pain. The appellant terminated her PhD studies approximately six months after the injury because of her continuing symptoms.

The appellant made a claim for workers compensation against the respondent. The respondent disputed that the appellant was a “worker” within the meaning of s 4 of the 1998 Act, or a “deemed worker” in accordance with cl 2 of Sch 1 to the 1998 Act. The appellant claimed weekly payments and treatment expenses. The Arbitrator issued a Certificate of Determination on 14 August 2020 in which he determined that the appellant was not a worker pursuant to s 4 of the 1998 Act, or a deemed worker under cl 2 of Sch 1 to the 1998 Act, at the time of injury. The appellant appealed that decision.

The issues on appeal were whether the Arbitrator erred in:

1. (a) fact and law when he failed to consider the correct contract being the contract created by the acceptance of the offer dated 29 November 2017 and 5 March 2018 (Ground 1);
2. (b) fact and law when considering that the worker’s indicia were not relevant to the true nature of the relationship (Ground 2);
3. (c) fact and law in concluding that the appellant was not a worker (Ground 3);
4. (d) fact in finding that the respondent retained the intellectual property in the work of all PhD students (Ground 4), and
5. (e) fact and law in finding that the appellant was not a deemed worker (Ground 5).

Held: The Arbitrator’s Certificate of Determination dated 14 August 2020 was confirmed.

The legal principles

1. The Arbitrator was tasked with determining whether the appellant was a worker who had entered into a contract of service or a deemed worker within the meaning of cl 2 of Sch 1 to the 1998 Act. In determining whether there was a contract of service, the parties submitted on, and the Arbitrator applied, the various indicia which might go to establishing such a relationship, as discussed in a long line of cases. ([104]–[105])

   (Zuijs v Wirth Brothers Pty Ltd [1955] HCA 73; 93 CLR 561 (Zuijs), and Cabra-Vale Ex-Active Servicemen’s Club Ltd v Thompson [2013] NSWWCCPD 49 (Thompson) applied)

2. On the basis of the observations in Zuijs and Thompson, in the present matter, the Arbitrator was required to give consideration to the various indicia raised in the appellant’s submissions, which are informative but not conclusive. He was also required to have regard to the totality of the relationship between the appellant and the respondent. ([106])
3. The appellant argued in the alternative that she was a deemed worker within the meaning of cl 2 of Sch 1 to the 1998 Act. In order to fall within that provision, the appellant was required to establish that:

• (a) there was a contract between the respondent and the appellant to perform work;
• (b) the work exceeded $10 in value;
• (c) the work was not incidental to a trade or business, and
• (d) the appellant did not sublet the contract or employ workers in the performance of the contract. ([107])

(Scerri v Cahill (1950) 14 NSWCCR 389 applied)

Ground 1

4. The appellant submitted that the Arbitrator erred in considering that there was possibly a contract formed when the appellant accepted the offer of a candidacy in the Higher Degree Research PhD program. The appellant alleged that the Arbitrator then proceeded to interpret that contract as the description of an ordinary student who had accepted a placement in a PhD program. ([114])
5. Deputy President Wood held there was no indication that the Arbitrator dealt with the “incorrect” contract or misunderstood the contract that he was required to consider. The Arbitrator did not simply consider that the relationship was that of an ordinary student who accepted a place in a university. He gave consideration to the nature of the relationship between the appellant and the respondent and concluded that the payment of the stipend, in the context of the many other elements of the contract, did not elevate the relationship to the level of a contract of service. He did so in the context of the totality of the relationship. His reasons at [72] and [73], together with his reasons as a whole, identified why he reached that conclusion, which was open to him. The appellant had failed to identify error of the kind complained of and this ground failed. ([119]–[120])

Ground 2

6. In support of this ground of appeal, the appellant relied on her submissions made in respect of Ground 1, which specifically alleged that the Arbitrator erred by considering the “incorrect contract”. It was difficult to see how submissions made under that ground were relevant to this ground of appeal. The respondent complained that it was not clear which submissions are intended to address this ground of appeal. The respondent submitted that in the absence of submissions, the appellant had not identified error as required by s 352 of the 1998 Act and the appeal ground should be rejected. ([121])
7. Practice Direction No 6 requires that the submissions in relation to each ground of appeal must be addressed separately under each ground. It is not satisfactory for a party to leave it up to the other party, or indeed the Presidential member, to identify which submission is relevant to which particular ground of appeal. ([122])
8. In her submissions in respect of Ground 1, the appellant referred to the various indicia that go to the question of whether the contract was a contract of service. That is, the control element, the obligation to provide materials, whether the respondent retained the right to the intellectual property created by the appellant’s research, the hours of work and the mutual obligation of the provision of work for the appellant to perform. Again in relation to Ground 1, the appellant further submitted that the Arbitrator erred in his conclusion because he failed to consider the necessary indicia and by reaching factual conclusions that were not open to him. ([123])
9. Those submissions bore no apparent relationship to the first ground of appeal and did not advance the appellant’s case in respect of that ground. In any event, if they were intended to address Ground 2, they could not be accepted. The Arbitrator clearly referred to and applied the indicia to the facts in this case in his reasons at [64]–[70]. Whether the Arbitrator committed an error of fact in applying the indicia was not cited in this ground of appeal or the first ground. The complaint was limited to the Arbitrator’s conclusion, which was arrived at after considering each of the indicia, that the indicia pointed to a student/teacher relationship and were therefore not relevant to the true nature of the relationship. In that context, that conclusion was open to him. It followed that Ground 2 failed. ([124]–[125])

Ground 3

10. The appellant again relied on her submissions made in respect of Ground 1. Deputy President Wood reiterated her comments made in respect of Ground 2. ([126])
11. The Deputy President held there was nothing inherently wrong with the Arbitrator’s reasoning process or his conclusion that the appellant was not a “worker” within the meaning of the 1998 Act. The Arbitrator weighed the evidence of the appellant with the evidence that surrounded the facts that the respondent retained the intellectual property generated by the appellant’s research and that the appellant received a stipend. ([133])
12. It is well settled that the acceptance or rejection of evidence and the weight to be afforded to particular evidence is a factual exercise and generally a matter that falls within the province of the primary decision maker. Findings of fact will not normally be disturbed on appeal if they have rational support in the evidence. ([134])

(Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611; 84 ALJR 369; 266 ALR 367; Shellharbour City Council v Rigby [2006] NSWCA 308, and Fox v Percy [2003] HCA 22; 214 CLR 118 applied)

13. The Arbitrator correctly applied the authorities in determining that an objective assessment of the relationship was required and in identifying the true nature of the relationship between the appellant and the respondent. In determining whether there was a contract of service, it is the totality of the relationship which must be considered, and the indicia can be no more than a guide to a master/servant relationship. ([135])

    (Stevens v Brodrib Sawmilling Co Pty Ltd [1986] HCA 1; 160 CLR 16 applied)

14. The Arbitrator’s conclusion that the appellant was not a worker within the meaning of the 1998 Act was open to him. The appellant had failed to establish error of the kind required in order to disturb the Arbitrator’s conclusion. Ground 3 failed. ([136])

Ground 4

1. The appellant submitted that there was no evidence to support the Arbitrator’s observation that the respondent retained the rights to the research of all students. The Arbitrator did not make that finding. He simply observed that such was a likelihood. The appellant made no submission under this ground of appeal as to how any such error has affected the ultimate outcome reached by the Arbitrator following his decision-making process. ([138])
2. The appellant asserted that the letter of offer dated 8 November 2017 provided that the support from the Commonwealth Government was to be acknowledged in any published material. The appellant submitted that this condition only applied where the student received a fee offset scholarship so that the obligation only arose for researchers in the position of the appellant and not for ordinary students. Wood DP observed that every domestic student received a fee offset scholarship and was thus obliged to make the acknowledgment in any published material. In whatever way the appellant’s submission related to this ground of appeal it was clearly incorrect. All domestic students were required to meet that obligation, not just those who were in receipt of a research scholarship. ([139]–[141])
3. The Deputy President determined that there was no error in the approach taken by the Arbitrator in failing to be satisfied that this factor, being the respondent’s retention of intellectual property, was indicative of an employment relationship between the appellant and the respondent. It followed this ground of appeal also failed. ([142]–[144])

Ground 5

18. The appellant submitted that the only explanation given by the Arbitrator that the appellant was not a deemed worker was that the contract was not a contract to perform work. The Arbitrator indicated that he had already determined that the contract between the appellant and the respondent was not a contract to perform work. He further indicated that there was no work exceeding $10 in value, and the appellant was not working in a trade or business but was a student. Further, there was no intention to create a mutual legal relationship of employer and employee. ([145])
19. Clause 2 of Schedule 1 to the 1998 Act requires there to be a contract to perform work. The Arbitrator found that such a contract was absent from the arrangement between the appellant and the respondent. The Arbitrator gave reasons for reaching that conclusion when determining the issue of whether the appellant was a “worker” within the meaning of the 1998 Act. There was no error on the Arbitrator’s behalf in so finding. The Arbitrator was entitled to rely on his earlier, reasoned, finding that there was not a contract to perform work in circumstances where the finding was explained, and such a contract was a required element in satisfying cl 2 of Sch 1. ([146])
20. The appellant contended that the Arbitrator did not explain why performing research did not constitute work and maintains that it is clearly “work” and was akin to that performed by a research worker for a pharmaceutical company. There was no correlation between the work performed as an employed researcher and that of a student pursuing a higher degree through research work. The Arbitrator gave adequate explanation as to why he did not consider the research undertaken by the appellant constituted “work,” as it is understood in the context of an employment relationship. ([147])
21. The appellant’s challenge to the Arbitrator’s determination in that regard did not succeed, and the appellant’s submission that the Arbitrator was in error, and continued that error was not sustained. This ground of appeal was not made out and failed. ([148]–[149])

Workers Compensation Nominal Insurer v Elias Bader t/as Genuine Kitchens (No 5) [2020] NSWWCCPD 72

Section 155AA of the 1987 Act; credibility

Phillips P

11 December 2020

Facts

The worker, Mr Abdelahad was injured in the course of his employment when he cut his hand with a saw. Mr Bader, the employer, did not have a workers compensation insurance policy. Mr Bader had employed Mr Abdelahad on what Mr Bader argued was a short term basis. On the morning of the injury, Mr Bader said he gave Mr Abdelahad a letter giving notice of termination of his employment.

In 2015, the Nominal Insurer paid compensation to Mr Abdelahad and issued a notice to Mr Bader for reimbursement of $30,815.82. Mr Bader lodged a miscellaneous application asserting he was an exempt employer pursuant to s 155AA of the 1987 Act. Those proceedings resolved by way of consent orders on 2 February 2016 where it was agreed that Mr Bader would reimburse the Nominal Insurer.

In 2018, the Nominal Insurer issued a further notice seeking reimbursement of a further $70,188.02 from Mr Bader. Mr Bader lodged another miscellaneous application pursuant to s 145(3) of the 1987 Act, again asserting he was an exempt employer on the basis that wages were below $7,500. He also sought a reconsideration of the consent orders of 2 February 2016.

The matter proceeded before Arbitrator Homan who determined Mr Bader was not an exempt employer, he was liable to reimburse the Nominal Insurer and she declined to reconsider the consent orders of 2 February 2016. Mr Bader appealed, and the appeal was upheld by Wood DP who remitted the matter to another Arbitrator for re-determination. Arbitrator Perry (the Arbitrator) re-determined the matter, finding that Mr Bader was an exempt employer within the meaning of s 155AA of the 1987 Act and was not liable to reimburse the Nominal Insurer. He also found that Mr Bader was not estopped from arguing he was an exempt employer. Mr Bader’s claim for an order that he was not liable to reimburse the Nominal Insurer in respect to the first notice was refused. The Nominal Insurer appealed.

The issues on appeal were whether the Arbitrator erred:

(a) at [120]–[133] of the reasons in accepting the employer employed the worker on a casual basis and a temporary basis and accepting the employer as to credit (Ground 1);

(b) at [136]–[137] of the reasons with respect to the FYE 2015 tax return (Ground 2);

(c) at [146]–[151] of the reasons in finding that the Nominal Insurer and the worker did not adequately contradict the service of the notice of termination (Ground 3);

(d) in finding at [157]–[158] of the reasons the letter dated 21 February 2015 only established the worker having work for the next day after 20 October 2014 (Ground 4), and

(e) in rejection of the Anshun estoppel based on a finding the employer compromised for reasons including the ‘evidentiary landscape’ and failing to find the prejudice to the Nominal Insurer founded an estoppel (Ground 5).

Held: The Certificate of Determination dated 25 October 2019 was confirmed.

Discussion

1. The contest in this matter as to whether or not Mr Bader was an exempt employer involved a contest of evidence between Mr Bader and Mr Abdelahad. There was no disagreement that Mr Abdelahad had been employed by Mr Bader and that he had been injured during the course of that employment. The dispute revolved around the basis of that employment, namely whether it was full-time, permanent, temporary or casual, and depending upon the settlement of that consideration, whether that had an effect upon the alleged or maintained status of the first respondent as an exempt employer. There was no evidence that Mr Bader was actively looking to employ staff at the time that he engaged Mr Abdelahad or at any time afterwards. ([219]–[222])
2. The Nominal Insurer, and this was particularly so with respect to Ground 2, invited close consideration of Mr Bader’s tax return. The Nominal Insurer, as the argument went, alleged that the total business income of $234,935 was consistent with Mr Bader conducting a substantial business “that would be more likely to employ persons with wages paid in excess of $7,500 for the year ended 30 June 2015”. Notwithstanding this submission, the evidence before the Arbitrator regarding any employees of Mr Bader during the relevant time only identified the single employee, Mr Abdelahad. ([223])
3. At no stage in either the hearing below or during this appeal did the appellant identify a particular figure in excess of $7,500 which it asserted was either paid to Mr Abdelahad or employees generally during the relevant financial year and thus proving that the statutory limit of $7,500 had been exceeded. Rather, this was the inference that the Commission had been invited to draw from the evidence. It is to be borne in mind that the test to be applied was whether the employer had reasonable grounds for believing the total amount of wages payable during the financial year will not be more than the exemption limit. The Arbitrator correctly set out the principles in this regard at [111]–[113] of the Reasons and there was no challenge made to this approach on this appeal. ([224])

Ground 1

4. The Nominal Insurer alleged that the Arbitrator made mixed errors of fact and law in accepting Mr Bader’s evidence when he found that Mr Abdelahad was employed on a casual and temporary basis. In short, the Nominal Insurer’s submission was designed to undermine Mr Bader’s explanation as to why these forms were not correctly completed, that is, by indicating that Mr Abdelahad’s engagement was on a basis other than permanent or full time. The clear inference from this submission was that Mr Bader had no need of an interpreter and, being an experienced businessman, at all times had sufficient English skills both oral and written to understand the full purport and effect of what he was saying or signing. ([226]–[227])
5. An error was alleged in that the Arbitrator did not find that Mr Abdelahad untruthful, yet his evidence was rejected. The submission said that if Mr Abdelahad’s evidence was truthful, then evidence on this matter of employment had to be accepted as contradicting Mr Bader. Dealing with this point, this was not the process that was undertaken by the Arbitrator. Rather, the Arbitrator in a carefully reasoned decision examined the evidence of both Mr Bader and Mr Abdelahad. He noted that the evidence of both was in some respects unsatisfactory however it is clear that the Arbitrator did prefer Mr Bader’s evidence to that of Mr Abdelahad. It was not correct for the Nominal Insurer to assert that Mr Abdelahad’s evidence was rejected. ([228]–[229])
6. The Arbitrator, at [114]–[164] of the Reasons, carefully examined the question as to whether Mr Bader was an exempt employer. This involved dealing with the credit dispute between Mr Bader and Mr Abdelahad. The Arbitrator dealt with the question of the nature of Mr Abdelahad’s employment, that is was it casual, temporary or permanent, in some detail, particularly at [121] and [122] of the Reasons. He also dealt with Mr Abdelahad’s statement of 12 November 2014 and the Nominal Insurer’s attack on Mr Bader for his use of an interpreter in cross-examination. ([233]–[237])
7. The President held the Arbitrator’s findings were certainly available to him. He had the full benefit of hearing Mr Bader’s evidence and judging for himself the need or not that Mr Bader had to be assisted by an interpreter. In his Honour’s opinion, the Arbitrator was the person best placed to evaluate the issue raised by the Nominal Insurer regarding the use of the interpreter. The Arbitrator carefully considered the evidence before making the finding of fact and it could not be said that the advantage enjoyed by the Arbitrator had been displaced. Ground 1 was not made out and was dismissed. ([238]–[239])

(Raulston v Toll Pty Ltd[2011] NSWWCCPD 25; 10 DDCR 156; Workers Compensation Nominal Insurer v Hill [2020] NSWCA 54, and Abalos v Australian Postal Commission [1990] HCA 47; 171 CLR 167 applied)

Ground 2

8. Ground 2 took issue with the Arbitrator’s interpretation and inferences relating to Mr Bader’s tax return for the financial year ending in 2015. The gravamen of the Nominal Insurer’s charge in this regard was that the tax return revealed a successful business “that would be more likely to employ persons with wages paid in excess of $7,500 for the year ended 30 June 2015” (emphasis added). The clear inference from this submission was that Mr Abdelahad could not be the only employee working for Mr Bader’s business during this financial year, simply based upon an examination of Mr Bader’s tax return. The Nominal Insurer directly challenged the construction of the tax return. The inference which was invited was that a business with an income of $234,935 must have had staff who were paid wages in excess of $7,500. This was the inference which the Arbitrator was asked to draw from this document and which he declined to do. ([240]–[242])
9. The President held Mr Abdelahad’s evidence was consistent with that of Mr Bader, namely, that there were no other employees other than Mr Abdelahad during the period that he worked for Mr Bader. There was no evidence that his Honour had been taken to, nor was the Arbitrator taken to any other evidence, which revealed the identity of any other employee during the financial year concerned. Rather, it had been the approach of the Nominal Insurer both at first instance and on appeal to press that inferences be drawn which arose from a consideration of the tax return itself. ([245])
10. In those circumstances, the President failed to see how the manner in which the Arbitrator dealt with the income tax return was “contrary to the preponderance of the evidence” as alleged by the appellant. To the contrary, his Honour considered that the Arbitrator’s findings at [136] of the Reasons were not only available to him, but were in fact consistent with the evidence. No error had been revealed with respect to how the Arbitrator dealt with the income tax return. As a result, Ground 2 failed. ([246]–[247])

Ground 3

11. Central to the complaint in Ground 3 was that Mr Abdelahad’s solicitor’s letter of 21 May 2018 was “admitted into evidence without objection”. The Nominal Insurer took issue with the finding made by the Arbitrator that Mr Abdelahad did not adequately contradict the service of the notice of termination. ([248])
12. The President held this submission fundamentally misunderstood the nature of proceedings in the Commission and the fact that s 354(2) of the 1998 Act expressly states that the Commission is not bound by the rules of evidence. The practice in the Commission is that the bundle of documents constituted by either an Application to Resolve a Dispute, a Reply, or an Application to Admit Late Documents are all before the Commission consistent with the terms of s 354(2) of the 1998 Act. In this case, the material before the Arbitrator was Mr Bader’s amended miscellaneous application and the replies filed by the two respondents. The Nominal Insurer’s submission, which maintained that the solicitor’s letter was admitted without objection, sought to import into this jurisdiction all of the consequences that arise when the rules of evidence do apply to a document which is admitted without objection. That is, the party who does not object to the tender of that material generally cannot later take issue with the veracity of the document unless consent to the tender was conditional. ([249]–[250])

(Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282; 13 DDCR 351 applied)

13. Properly understood, the solicitor’s letter became a matter for weight. At [150] of the Reasons, the Arbitrator approached the matter of the letter in the following way: “I accept that the worker’s solicitor would not have made that submission without instructions from him. But it is not evidence.” This was an approach with which the President agreed. Before the Arbitrator were conflicting statements regarding this issue which were dealt with from [146]–[156] of the Reasons. The point surrounding the termination letter went directly to the “reasonable grounds for believing” basis for the exemption found in s 155AA of the 1987 Act. ([251]–[252])
14. His Honour held that the Arbitrator considered all of the evidence, including the solicitor’s letter, in reaching his ultimate conclusion that the Nominal Insurer and worker had not adequately contradicted the service of the notice of termination. ([253])
15. In this ground, the Nominal Insurer also complained about a lack of procedural fairness. It asserted that the Arbitrator failed to raise a concern about the letter from Mr Abdelahad’s solicitors being in evidence when it was admitted without objection. The President held it was incorrect for the Nominal Insurer to allege that the letter was “in evidence” in the sense that the rules of evidence applied. It was clear from a reading of the Arbitrator’s decision that the letter was before him (though not in the strict evidentiary sense alleged by the appellant) and that he, having considered that letter along with other matters, accorded it little weight. It was clear that the Arbitrator did deal with Mr Abdelahad’s denial regarding the termination letter in terms and there is thus no denial of procedural fairness as alleged or at all. This ground had no basis and was dismissed. ([254], [257]–[258])

Ground 4

16. At issue in Ground 4 was an interpretation of a letter of demand sent by Mr Bader to Mr Abdelahad dated 21 February 2015. This was a letter in which Mr Bader made a number of claims adverse to the worker and was claiming damages from him. The appellant maintained that the terms of the letter of demand revealed an ongoing need for Mr Abdelahad to continue working and that this would negate Mr Bader’s claim that he was an exempt employer. Central to this challenge was how the Arbitrator construed this correspondence. ([259])
17. The President found Mr Bader’s evidence concerning Mr Kass was telling. There was no issue in the proceedings that Mr Kass was not an employee, he was a contract installer. This evidence revealed that it was Mr Kass who was intended to do the installation of six of the kitchens with Mr Abdelahad and Mr Bader having done two. This evidence made it clear that Mr Kass was the fellow who was performing the installation. Once this was accepted, it was clear why the Arbitrator found that the letter of demand was a side issue. This letter did not serve to otherwise undermine the earlier analysis that the Arbitrator had made regarding the issues in dispute. ([262])
18. His Honour concluded that the findings made by the Arbitrator with respect to this letter were certainly available to him and in particular, having heard the evidence of both Mr Abdelahad and Mr Bader. It could not be said that the Arbitrator was wrong to give the letter little or no weight having undertaken the analysis that he did of the evidence generally. No error of approach had been revealed in terms of how the letter was dealt with. Ground 4 was dismissed. ([264]–[265])

Ground 5

19. At the commencement of the hearing on 7 September 2020, the Nominal Insurer stated that it did not press Ground 5. Ground 5 was formally dismissed. ([57], [266])

BQ v BT [2020] NSWWCCPD 70

Section 352(3) of the 1998 Act

Snell DP

1 December 2020

Facts

Mr BR was tragically killed in a truck accident while driving in the course of his employment on 4 September 2019. The insurer accepted liability and the matter came before the Commission for the identification of persons who were wholly or partially dependent on the deceased, apportionment of the sum of $810,050 between the dependants, interest, and orders in relation to the payment of compensation.

On 17 August 2020, the Commission issued a Certificate of Determination in which the Senior Arbitrator found that Ms BQ (the widow) was partially dependent on the deceased and that each of the four infant children was wholly dependent. The Senior Arbitrator’s orders relating to dependency, apportionment and interest were not challenged. Ms BQ sought that the lump sums apportioned to the children be paid to her as trustee, rather than to the NSW Trustee. The Senior Arbitrator said he had no reason to doubt Ms BQ’s intentions, but said “who knows what the future holds.” The Senior Arbitrator ordered that the funds should be paid to the NSW Trustee and Guardian to hold on trust until each of the children turned 18. He said there was no compelling reason for departing from the usual practice of ordering the funds be paid to the NSW Trustee and Guardian to hold on trust until each child turns 18 years of age.

Ms BQ appealed the Senior Arbitrator’s order that the lump sums apportioned to the children be paid to the NSW Trustee and Guardian.

The issues on appeal were whether the Arbitrator erred in:

(a) discretion when he stated at paragraph [68] of his reasons ‘who knows what the future holds’ (Ground 1);

(b) discretion when he stated that there was ‘no compelling reason’ to depart from ‘the normal practice’ (Ground 2), and

(c) discretion and law in that the use of the words ‘compelling reason’ was an incorrect application of the requirements of s 85A of the 1987 Act (Ground 3).

Held: The appeal cannot be brought as the requirements of s 352(3) of the 1998 Act were not satisfied.

The requirements of section 352(3) of the 1998 Act

1. Ms BQ submitted that ‘compensation’ includes “any monetary benefit” under the Workers Compensation Acts. It was submitted that clearly the amount of compensation at issue on the appeal was more than $5,000, it involved lump sum awards substantially greater than that sum. This left the issue of whether the amount of compensation at issue on the appeal was at least 20 per cent of the amount awarded. Ms BQ submitted the focus of this appeal was the amount awarded to the children. The requirements were met, it was submitted, by the amount of $810,050 (the lump sum) plus interest, or alternatively the amount of $534,633 (the lump sum awarded to the children) plus interest. ([21])
2. It was held in Patrick Operations Pty Ltd v Watson [2013] NSWWCCPD 18 that the “monetary threshold is a mandatory requirement which must be met before the Commission may hear an appeal”. This was consistent with the clear words of the section. It was observed in Tagg v International Flavours and Fragrances (Australia) Ltd [2003] NSWWCCPD 5 that the ‘amount of compensation at issue on the appeal’ “may be different from the amount of compensation at issue in the dispute as a whole”.  The words of the section clearly direct attention to the amount ‘at issue on the appeal’. ([22])
3. The Senior Arbitrator in the current proceedings was required to deal with dependency, apportionment of the lump sum provided in s 25(1)(a) of the 1987 Act between those found to be dependent, interest on that lump sum and the way in which payment of the lump sums apportioned to the children was to be made. The only challenge to the Arbitrator’s decision went to his orders for payment of the various sums apportioned to children to be paid to the NSW Trustee. The issue on appeal related only to the exercise of the Arbitrator’s discretion in respect of the orders for payment to the NSW Trustee. ([27])
4. The first of the requirements in s 352(3) is that at subs (a), that the “amount of compensation at issue on the appeal” be at least $5,000. Deputy President Snell could not see that there was any amount of compensation at issue on the appeal. The amount of compensation awarded overall, and to each of the dependants individually, would not be varied by the outcome of the appeal. If the appeal were to succeed, the only practical effect would be on the identity of the trustee to which payment was to be made. The first of the requirements in s 352(3) was not satisfied. As there was no amount of compensation at issue on the appeal, it followed that the requirements of subs (b) of s 352(3) similarly could not be satisfied. ([28]–[29])

(Fletchers International Exports Pty Limited v Regan [2004] NSWWCCPD 7; O’Callaghan v Energy World Corporation Ltd [2016] NSWWCCPD 1; Abu-Ali v Martin-Brower Australia Pty Ltd [2017] NSWWCCPD 25, and NSW Department of Education and Communities v Colefax [2012] NSWWCCPD 63 applied)

5. The appeal could not be brought as the requirements of s 352(3) of the 1998 Act were not satisfied. ([29])

Morcos v Deosa Enterprises Pty Limited [2020] NSWWCCPD 73

Section 32A of the 1987 Act; no current work capacity

Parker SC ADP

17 December 2020

Facts

The appellant was employed by the respondent as a self-employed electrician. On 23 May 2017, he sustained an injury to the right knee. Subsequently, on 4 December 2017, the right knee gave way and the appellant fell onto his right arm injuring the right elbow and causing the need for surgery on the right arm. The appellant developed a secondary psychological condition.

As a result of the injury of 23 May 2017, the appellant was paid weekly payments of compensation for 130 weeks. On 29 November 2017, the insurer informed the appellant that weekly payments of compensation would end on 11 January 2020 due to the operation of s 38(3) of the 1987 Act.

The issue before the Arbitrator was whether the appellant had no current work capacity since 12 January 2020 and was likely to continue indefinitely to have no current work capacity with reference to ss 32A and 38(2) of the 1987 Act.

The Arbitrator determined that the appellant had failed to establish that he had had no current work capacity from 12 January 2020 to the date of the decision. The appellant appealed.

The issues on appeal were whether the Arbitrator erred in fact and law in:

1. (a) determining the applicant has a current work capacity, and
2. (b) failing to determine the application or otherwise of s 32A and s 38 (of the 1987 Act).

Held: Paragraph 1 of the Certificate of Determination dated 5 August 2020 was revoked, and the appellant’s entitlement to weekly compensation from 12 January 2020 to date and continuing was remitted to the Arbitrator for determination.

Ground 1: Determining the applicant has a current work capacity

1. Acting Deputy President Parker SC observed the Arbitrator dealt with the combined effect of the physical and psychological impairments at [78]–[80] of the Reasons. The Arbitrator did not accept Dr Teoh’s evidence of the assessment he provided because he regarded the opinion as being ambiguous. The ambiguity arose from the impairment rating. The Arbitrator did not say what more he felt Dr Teoh should have said or upon what other or additional basis he rejected the opinion. ([44]–[48])
2. The report of Dr Teoh was plainly ambiguous, on the one hand offering the opinion that the appellant was unable to work at all and on the other hand suggesting for the purpose of the impairment rating that he was fit for suitable duties. It was for the appellant to adduce evidence to resolve this ambiguity. There was no application made to adjourn the proceedings to obtain further evidence from Dr Teoh to clarify the ambiguity. This meant the Arbitrator was required to resolve the ambiguity. It was open to the Arbitrator to not be satisfied with the internally conflicting evidence of Dr Teoh and to conclude that he was not persuaded. ([49]–[50])
3. The Arbitrator dismissed the treating psychiatrist, Dr Khan’s, evidence for different reasons. At [76] of the Reasons, the Arbitrator said Dr Khan did not record “his own observations” of the appellant’s psychological symptoms and did not explain why he could not return to work within the next 12 months. Plainly Dr Khan did not provide an explanation of his view that the appellant would not return to work within the next 12 months. But the antecedent question of what was the appellant’s capacity for employment was properly answered and, in the Acting Deputy President’s view, the rejection of Dr Khan’s opinion on the ground that he had not recorded his own observations of the appellant’s psychological symptoms was in error and required correction. ([51]–[52])
4. The rejection of Dr Khan’s opinion was in error. The Arbitrator misstated Dr Khan’s evidence. Dr Khan did examine the appellant and on the basis of his examination certified the appellant as having no current capacity to engage in work. Dr Khan did not in his report expressly refer to a “mental state examination” of the appellant, but the report included Dr Khan’s statement referring to “conditions found on examination”. That was a clear indication of an independent medical examination by Dr Khan rather than, as conjectured by the Arbitrator, a mere recitation of the appellant’s complaints. ([56]–[57])
5. The conclusion that the psychiatrist merely recorded what he was told by the appellant was contradicted by Dr Khan’s statement at page 3 of his report of 30 January 2020, “[the appellant’s] psychiatric conditions found on examination” and the Arbitrator’s conclusion to the contrary was in error. ([58])
6. The evidence was that while the appellant may have a physical capacity for some types of part-time work as found by the Arbitrator, the treating psychiatrist expressed the opinion that he was not fit for any employment at the present time and would not be likely to have recovered so as to return to any employment within the next 12 months. Accepting that there was an internal inconsistency in Dr Teoh’s report there was nevertheless a consistency with the views of Dr Khan. The respondent called no psychiatric evidence to contradict the evidence of Drs Teoh or Khan. The rejection of the evidence of Dr Khan at least was an error going to the outcome of the proceedings that the appellant had failed to persuade the Arbitrator. ([59])
7. On the basis of all of the evidence, both physical and psychiatric, the Arbitrator should have reached the conclusion the appellant did not have any ability to return to work in either the pre-injury employment of electrician or in suitable employment. It followed that the Arbitrator should have found that as at 12 January 2020 the appellant had “no current work capacity”. ([60])
8. The Acting Deputy President added that he did not detect any error in the Arbitrator’s approach to the determination of what should be regarded as “suitable employment” for the appellant. He also did not detect any tension in the approaches adopted to the issue of suitable employment in Wollongong Nursing Home v Dewar [2014] NSWWCCPD 55; 15 DDCR 253 and Popal v Myer Holdings Pty Ltd [2020] NSWWCCPD 32. Ground 1 of the appeal was made out. ([61]–[62])

Ground 2: Failing to determine the application or otherwise of s 32A and s 38 (of the 1987 Act)

9. It was unnecessary for Acting Deputy President Parker SC to determine Ground 2 of the appeal. It was common ground that s 38(3) of the 1987 Act was not satisfied for the reasons set out in the insurer’s letter of 29 November 2019. That is to say, as the document accompanying the letter explained, if the appellant had a current work capacity he did not satisfy the special requirements of s 38(3) of the 1987 Act. The Arbitrator, having found that the appellant had not persuaded him that he had no current work capacity from 12 January 2020, was not required to determine, presumably, on an alternative basis the operation s 38(2) and issues relevant to suitable employment. ([63]–[65])

   Conclusion

10. The appellant had requested that the Arbitrator’s decision be set aside and returned to an alternative Arbitrator for determination. The Acting Deputy President observed that the Arbitrator received submissions from the parties’ counsel relevant to whether the appellant was “likely to continue indefinitely to have no current work capacity” within s 38(2) of the 1987 Act, but the Arbitrator expressly refrained from determining that issue in the circumstances of the dispute. On the appeal, neither the appellant nor the respondent had advanced submissions or raised this issue for determination. There was no basis upon which Acting Deputy President Parker SC could determine that issue and it had be remitted to the Arbitrator for determination of the issue of whether the appellant is “likely to continue indefinitely to have no current work capacity”. As the remittal was limited to a discrete issue, the Acting Deputy President did not see any reason why the present Arbitrator should not determine it. ([67]–[69])