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Arbitrator appeals pre-February 2011

Sapina v Coles Myer Ltd [2009] NSWCA 71. Allsop P & Hoeben J, Beazley JA agreeing.

This in respect of s 352 before 02.11.

Arbitrator error was not a precondition to 1998 Act s 352 review by a presidential member, the Court held.

Allsop P and Hoeben J delivered a joint judgment, with which Beazley JA simply agreed.

Their Honours remitted the review to the Commission, ordering costs to the appellant worker.

The worker had claimed psychological injury after performance counselling.

The arbitrator found injury satisfying 1987 Act s 9A, but determined the counselling reasonable by s 11A, and dismissed the claim.

Although criticising expression of the arbitrator’s findings, acting president Byron found the worker had not established error by the arbitrator.

Allsop P and Hoeben J detailed WIM ss 3, 352, 353 & 354, and 1987 Act ss 9A & 11A, and the facts.

The final form of appeal grounds were [at para 4]:

“1. AP Byron erred in law in failing himself to address whether Ms Sapina’s psychological injury was ‘wholly or predominantly caused by’ Coles’ performance appraisal of her on 8 January 2007;

“2. AP Byron erred in law in failing himself to decide whether the true and correct view was Ms Sapina’s psychological injury was ‘wholly or predominantly caused by’ Coles’ performance appraisal of her on 8 January 2007;

“3. AP Byron erred in law in failing to conduct a proper review.”

Their Honours said [17] “… it is necessary to explain clearly the nature of an appeal pursuant to the WIM Act s 352,” before quoting from STA v Chemler[2007] NSWCA 249 per Spigelman CJ therein at paras 28-30, and cases Mansini v Director General of Education (1990) 6 NSWCCR 1 at pp4-20; Watson v Hanimex Colour Services Pty Limited (1992) 8 NSWCCR 190 at 199-206; Boston Clothing Co v Margaronis (1992) 27 NSWLR 580 at 584-585; Litynski v Albion Steel Pty Limited (1994) 10 NSWCCR 287 at 295-297, c/f 298-300; Aluminium Louvres & Ceilings Pty Limited v Zheng[2006] NSWCA 34 at [38]; South Western Area Health Service v Edmonds[2007] NSWCA 16 at [133]-[134].)

Later [infra 25], “Even in an appeal by way of rehearing the task of the correction of error takes its place: see Fox v Percy (2003) 214 CLR 118 and the other High Court authorities referred to in Costa v Public Trustee [2008] NSWCA 223 and in Branir v Owston Nominees (No 2) PtyLimited [2001] FCA 1833; 117 FCR 424 at [20]-[32], including Allesch v Maunz [2000] HCA 40; 203 CLR 172.

“The Presidential member cited Allesch v Maunz in support of the proposition that his task was the correction of error. That was, as these reasons seek to demonstrate, the wrong test for ‘an appeal by way of review’. It was also an incomplete description of the task of an appeal by way of rehearing (though that concept is not the relevant test for his task either).” [26]

Department of Education & Training v Sinclair [2005] NSWCA 465 was quoted and more recent appeal judgments embracing WatsonBoston ClothingChemler and Edmonds, which included Siddick v WorkCover Authority of New South Wales [2008] NSWCA 116, at [70]-[81] 27, Duinker v St Vincent de Paul Society Aged and Special Services Limited (Lewisham Nursing Home) [2008] NSWCA 127 27, Jeffery v Lintipal Pty Limited [2008] NSWCA 138 29, Cook v Midpart Pty Ltd [2008] NSWCA 151, Ric Developments v Muir [2008] NSWCA 155 28, Tan v National Australia Bank Ltd [2008] NSWCA 198 29, Akora Holdings Pty Ltd v Ljubicic [2008] NSWCA 339.

In Tan, the view of Young CJ in Eq at [60], that error affecting the result was necessitous to ground review, was wrong [53].

Later, their Honours said [57]: “Whilst the new regime of dealing with workers’ compensation claims must be examined in its own statutory context, it is important to appreciate that the legislature has used a phrase that had in the prior regime, a tolerably settled meaning. Section 36 of the Compensation Court Act used the phrase “review the decision”. Subsections s 352 (1) and (5) of the WIM Act make clear that the “appeal” is to be by way of review of the decision. The notion of “review of a decision” had been clearly held in the context of the former legislation and the WIM Act to be wider that an appeal strictly so-called and encompassing a reconsideration beyond correction of error. The decision under appeal is not to be ignored, but the task of the Presidential member is, as Spigelman CJ said in Chemler, “to decide whether the original decision is wrong [that is to] decide what is the true and correct view.” This requires the Presidential member to decide for himself or herself these matters.

“That does not mean that there must be a de novo hearing in each case. Cases such as WatsonBoston ClothingLitynski and AGL v Samuelsmade plain that this was not so under s 36 and the terms of ss 3, 352 (7) and 354 make clear that no such broad ranging factual enquiry afresh is necessarily required. The terms of the WIM Act, ss 3 and 354 and the width of the powers in s 352 (7) make clear that the Presidential member has a wide choice available as to how he or she undertakes the task of deciding for himself or herself what is the true and correct decision. As Allsop P said in Cook v Midpart, error (or lack of it) by the Arbitrator will or may be relevant to the task of the Presidential member, but it does not define the task. There is, however, an important difference in the nature of the tasks of (a) coming to the view that an Arbitrator’s view was reasonable and (b) deciding for oneself that the view of the Arbitrator is the true and correct one. In a field where evaluation of injury and evidence of incapacity can lead to different views, both or all which could be reasonably held, it is important that the parties have available to them the skill and judgment of the Presidential member reaching his or her own view on the questions involved in the decision.

“Just as error of the Arbitrator may be relevant, so might be the advantages of the Arbitrator in seeing witnesses. Nothing we have said, and none of the cases to which we have referred, necessarily requires the Presidential member to rehear the case or to recall all the witnesses. The approach of the Presidential member as to how he or she goes about reaching his or her own decision will be a matter for him or her within the confines and freedoms of s 354.” [58]

That the presidential member had wrongly concluded error requisite the review, whether he had in fact conducted a review was considered by their Honours, albeit negatived [60-69].

Ultimately [70], “The failure of a Presidential member to properly exercise his or her function under the WIM Act, s 352 constitutes an error of law. This error arises in all three grounds of appeal. It follows that the appellant has made out her grounds of appeal and the appeal should be allowed. Given the basis upon which the appeal has succeeded, the matter must be remitted to a Presidential member to be determined in accordance with these reasons.”

Appeal allowed, orders set aside, remitter to WCC constituted by presidential member, respondent to pay appellant worker’s costs.

A: S Gibb SC; S Moffitt; Walker Legal. R: D C Campbell SC; AJ Hourigan; Lander & Rogers.

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