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Appeal, from arbitrator

Raulston v Toll PL [2011] NSWWCCPD 25. Roche DP. 17.05.11.

16. As the Arbitrator issued his decision after 1 February 2011, the appeal provisions introduced by the Workers Compensation Legislation Amendment Act 2010 apply. As amended, s 352 now states: ...

352 Appeal against decision of Commission constituted by Arbitrator

(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.

(5A) An appeal under this section stays the operation of the decision appealed against pending the determination of the appeal. However, an appeal does not stay or otherwise affect the operation of a decision as to weekly payments of compensation and weekly payments of compensation remain payable despite any appeal.

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17. There are a number of points to note about the new s 352:

(a) an appeal from an Arbitrator to a Presidential member is no longer a “review” and is not a hearing de novo. It is an appeal that is limited to the 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. It is the establishment of error and the correction of that error that now defines the process under s 352;

(b) save for interlocutory decisions, it is no longer necessary to seek leave to appeal. For decisions that are not interlocutory, once the monetary threshold in s 352(3) is satisfied, the appeal proceeds as of right;

(c) the Commission is not to grant leave to appeal an interlocutory decision unless of the opinion that determining such an appeal is necessary or desirable for the proper and effective determination of the dispute;

(d) fresh evidence or additional evidence or evidence in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal except with leave. The Commission is not to grant leave unless satisfied that the evidence concerned was not available to the party, and could not reasonably have been obtained by the party, before the proceedings concerned or that failure to grant leave would cause substantial injustice in the case;

(e) the lodging of an appeal does not operate as a stay or otherwise affect the operation of a decision as to weekly payments of compensation and those payments remain payable despite the filing of an appeal. In respect of other orders, the appeal stays the operation of the decision appealed against pending the determination of the appeal, and

(f) on appeal, the decision appealed against may be revoked and a new decision made in its place, or, in the alternative, the matter may be remitted to the Arbitrator or another Arbitrator for determination in accordance with any decision or directions of the Commission.

18. In applying the above provisions, the Commission will have regard to the following general principles and authorities.

19. First, as error now defines the appeal process under s 352, the following principles stated by Barwick CJ in Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 at 506 (cited with approval by Brennan CJ, Toohey, McHugh, Gummow and Kirby JJ in Zuvela v Cosmarnan Concrete Pty Ltd [1996] HCA 140; 140 ALR 227) are relevant (I have substituted “Arbitrator” for “trial judge” where appropriate):

(a) An Arbitrator, though not basing his or her findings on credit, may have preferred one view of the primary facts to another as being more probable. Such a finding may only be disturbed by a Presidential member if “other probabilities so outweigh that chosen by the [Arbitrator] that it can be said that his [or her] conclusion was wrong”.

(b) Having found the primary facts, the Arbitrator may draw a particular inference from them. Even here the “fact of the [Arbitrator’s] decision must be displaced”. It is not enough that the Presidential member would have drawn a different inference. It must be shown that the Arbitrator was wrong.

(c) It may be shown that an Arbitrator was wrong “by showing that material facts have been overlooked, or given undue or too little weight in deciding the inference to be drawn: or the available inference in the opposite sense to that chosen by the [Arbitrator] is so preponderant in the opinion of the appellate court that the [Arbitrator’s] decision is wrong.”

20. The decision of Allsop J in Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833 is also instructive in the context of the need to establish error. His Honour observed (at [28]):

“in that process of considering the facts for itself and giving weight to the views of, and advantages held by, the trial judge, if a choice arises between conclusions equally open and finely balanced and where there is, or can be, no preponderance of view, the conclusion of error is not necessarily arrived at merely because of a preference of view of the appeal court for some fact or facts contrary to the view reached by the trial judge.”

After observing that a degree of tolerance for any such divergence in any particular case will often be a product of the perceived advantage enjoyed by the trial judge, Allsop J concluded (at [29]):

“The appeal court must come to the view that the trial judge was wrong in order to interfere. Even if the question is one of impression or judgment, a sufficiently clear difference of opinion may necessitate that conclusion.”

22. Second, subject to a Presidential member granting one or both parties leave to tender fresh evidence or additional evidence on appeal, the appeal will be conducted on the transcript of the evidence presented at the arbitration.

23. Third, parties will usually be bound by the presentation of their case at the arbitration and neither party to an appeal will be permitted to raise new issues on appeal, where those issues could have affected the outcome or course of the arbitration and been met with additional evidence in response: Coulton v Holcombe [1986] HCA 33; 162 CLR 1 at 7University of Wollongong v Metwally (No 2) [1985] HCA 28; 59 ALJR 481Water Board v Moustakas [1988] HCA 12; 180 CLR 491Suttor v Gundowda [1950] HCA 35; (1950) 81 CLR 418 at 438. This principle is subject to the Commission’s power to allow (with leave) fresh evidence or additional evidence in the limited circumstances stated in s 352(6).

24. Fourth, given the discretionary power to allow fresh evidence or additional evidence on appeal, and the power to not only confirm or revoke a decision but to make a new decision in place of the Arbitrator’s decision, an appeal under s 352 is properly characterised as a rehearing where the Presidential member’s powers are exercisable “only where the appellant can demonstrate that, having regard to all the evidence now before the [Presidential member], the order that is the subject of the appeal is the result of some legal, factual or discretionary error”: Allesch v Maunz [2000] HCA 40; 203 CLR 172 per Gaudron ACJ, McHugh, Gummow and Hayne JJ at [23]; Coal & Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194 at [14] . The power to admit further evidence is of a remedial nature conferred “to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures”: (per McColl JA, Mason P and Giles JA agreeing, in Siddik v WorkCover Authority of NSW [2008] NSWCA 116 at [66], quoting CDJ v VAJ (No 1) [1998] HCA 67; 197 CLR 172 at [109].

25. Fifth, what constitutes an appealable error of fact, law or discretion will be determined on a case-by-case basis. However, the Commission will be guided by the principles stated in Fox v Percy [2003] HCA 22; 214 CLR 118 at [22] to [31]. Mistakes can occur in the “comprehension, recollection and evaluation of evidence”: Fox v Percy at [24]. If, after making a proper allowance for the advantages of the Arbitrator in seeing and hearing the witnesses, the Presidential member concludes “that an error has been shown”: Fox v Percy at [27], he or she is obliged to correct that error.

26. Sixth, credibility based findings may be overturned if “incontrovertible facts or uncontested” evidence: Fox v Percy at [28], establish that they were wrong. In rare cases, although the facts fall short of being “incontrovertible”, such findings may be overturned if they are “glaringly improbable” or “contrary to compelling inferences” in the case: Fox v Percy at [29] citing Brunskill v Sovereign Marine & General Insurance Co Ltd [1985] HCA 61; 59 ALJR 842 at 844 and Chambers v Jobling (1986) 7 NSWLR 1 at 10.

27. Seventh, challenges to an Arbitrator’s exercise of discretion will be in accordance with the principles in House v The King [1936] HCA 40; 55 CLR 499 at 504–5. Those principles were articulated by Heydon JA in Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274.

To succeed with an appeal against an Arbitrator’s exercise of discretion, the appellant must demonstrate that the Arbitrator:

(a) made an error of legal principle,

(b) made a material error of fact,

(c) took into account some irrelevant matter,

(d) failed to take into account, or gave insufficient weight to, some relevant matter, or

(e) arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning”: Micallef at [45].

28. In an appeal against a discretionary decision, a Presidential member will not overturn the decision because he or she “might have reached a different conclusion or because intuitive feelings suggest to them a different outcome in the particular case”: The Queen v Taufahema [2007] HCA 11; 234 ALR 1.

29. Eighth, the same general approach that applies to appeals against discretionary decisions also applies to appeals against compensation for pain and suffering under s 67 of the 1987 Act. The appellant must establish that the decision was “outside the limits of a sound discretionary judgment”: Alvorac General Engineering Pty Ltd v Arlotta (1993) 9 NSWCCR 177 at 182B; Moran v McMahon(1985) 3 NSWLR 700 at 716-21.

A Presidential member will not disturb an award of compensation for pain and suffering, or a decision analogous to a decision involving the exercise of a discretion as to be assimilated to a discretionary judgment, unless the Arbitrator has acted on a wrong principle of law or has misinterpreted the facts or made a wholly erroneous estimate of the damage suffered: Moran v McMahon at 702E, 722G, 726F; Wilson v Peisley (1975) 7 ALR 571 at 585, and Costa v The Public Trustee of NSW [2008] NSWCA 223 at [105].

30. Ninth, in respect of an error involving a departure from the rules of natural justice or procedural fairness, the appellant needs to show that the departure deprived him of the possibility of a successful outcome. To negate that possibility, it is necessary for the Presidential member to find that a properly conducted arbitration could not possibly have produced a different result: Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147.

31. In summary, the role of a Presidential member is to determine if the decision appealed against is affected by error and, if so, to correct that error. The error must be one that has affected the outcome: Leichhardt Municipal Council v Seatainer Terminals Pty Ltd (1981) 48 LGRA 409 at 419 cited in Trazivuk v Motor Accidents Authority of New South Wales [2010] NSWCA 287 at [110].

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It is not an error to omit to state expressly a finding that is clear on a fair reading of the whole of the decision: Kevin Polglaze v Veterinary Practitioners Board of NSW [2009] NSWSC 347 at [56]: Plateau Tree Services Pty Ltd v Shannon [2011] NSWWCCPD 75, Roche DP at [40].

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Collingridge v IAMA Agribusiness PL [2011] NSWWCCPD 31. Roche DP.

[15] As the Arbitrator issued her decision after 1 February 2011, the appeal provisions introduced by the Workers Compensation Legislation Amendment Act 2010 apply. I discussed the Commission’s general approach to the new s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) in Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 [see above].

Appeals against Arbitrators’ decisions decided on and after 1 February 2011 are restricted to the determination of whether the decision was or was not affected by any error of fact, law or discretion, and to the correction of any such error.

There is no right of appeal against interlocutory decisions, except with leave of the Commission and 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”: s 352(3A) of the 1998 Act.

[16] The Arbitrator’s decision was interlocutory because it did not finally dispose of the parties’ rights but merely determined the deemed date of injury: P & O Ports Ltd v Hawkins [2007] NSWWCCPD 87; Licul v Corney [1976] HCA 6, 50 ALJR 439. As a result, the appellant must seek leave to appeal.

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[17] Parties are reminded that, when leave to appeal is required because the decision appealed is interlocutory, the application for leave should be made in the documents filed when the appeal is lodged.

The Commission is not to grant leave to appeal “unless of the opinion that determining the appeal is necessary or desirable for the proper and effective determination of the dispute”. This requires a consideration of the nature of the dispute and the orders sought on appeal.

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The issue in dispute is the determination of the correct deemed date of injury. If the appeal is successful, the Arbitrator’s determination will be revoked and the matter remitted to the Registrar for referral to an Approved Medical Specialist (AMS) for assessment of the claim for additional compensation under the Table of Disabilities.

If the appeal is unsuccessful, and I determine that the correct deemed date of injury is 15 March 2010, Mr Perry conceded that I should dismiss the Application under s 354(7A)(b) of the 1998 Act as being “misconceived” or “lacking in substance”: White v Sylvania Lighting [2011] NSWWCCPD 7 at [63]–[73]. Either way, the issue in dispute will be resolved. It is therefore appropriate for the “proper and effective determination of the dispute” that I grant leave to appeal.

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