HAIDER v JP MORGAN HOLDINGS AUST LTD TRADING AS JP MORGAN OPERATIONS AUSTRALIA LTD

Court of Appeal (NSW)|2007-06-21|Before: Giles JA, McColl JA, Basten JA, Coll JA

CITATION: HAIDER v JP MORGAN HOLDINGS AUST LTD TRADING AS JP MORGAN OPERATIONS AUSTRALIA LTD [2007] NSWCA 158

JUDGMENT OF: Giles JA at 1; McColl JA at 7; Basten JA at 8

CATCHWORDS: WORKERS' COMPENSATION - where death of employee occurs in interval between periods of work - sufficient connection between injury and employment - whether employment a substantial contributing factor - Workers Compensation Act 1987 (NSW) s 9A - PROCEDURE - appeal to Presidential Member of the Workers Compensation Commission from decision of arbitrator - admission of new evidence - APPEAL - error of law - no evidence

Supreme Court Act 1970 (NSW), s 75A LEGISLATION CITED: Workers' Compensation Act 1926 (NSW), ss 6, 7 Workers Compensation Act 1987 (NSW), ss 4, 9A, 25, 26 Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 352, 353, 354

Akins v National Australia Bank (1994) 34 NSWLR 155 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Aztech Science Pty Ltd v Atlanta Aerospace (Woy Woy) Pty Ltd [2005] NSWCA 319; (2005) 55 ACSR 1 Bruce v Cole (1998) 45 NSWLR 163 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 The Commonwealth v Lyon (1979) 24 ALR 300 The Commonwealth v Oliver (1962) 107 CLR 353 Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 153, (2001) 22 NSWCCR 46 Favelle Mort Ltd v Murray (1976) 133 CLR 580 Hatzimanolis v A.N.I. Corporation Ltd (1992) 173 CLR 473 Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281 CASES CITED: Humphrey Earl Ltd v Speechley (1951) 84 CLR 126 McMahon v Lagana [2004] NSWCA 164 Mercer v ANZ Banking Group Ltd (2000) 48 NSWLR 740 Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222 Murray v Shillingsworth [2006] NSWCA 367 Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 Seltsam Pty Ltd v Gahleb [2005] NSWCA 208 Thomas v Airlines of NSW Pty Ltd (1964) 64 SR NSW 176 Van Haeften v Caltex Oil (Australia) Pty Ltd (1995) 12 NSWCCR 250 Vetter v Lake Macquarie City Council (2001) 202 CLR 439 WorkCover Authority of NSW v Walsh [2004] NSWCA 186

PARTIES: Tahira Haider - Appellant JP Morgan Holdings Aust Ltd t/as JP Morgan Operations Australia Ltd - Respondent

COUNSEL: D.E. Baran - Appellant I.D. Roberts SC/S.B. Lowe - Respondent

SOLICITORS: Buttar Caldwell & Co - Appellant Rankin Nathan Lawyers - Respondent

LOWER COURT JURISDICTION: Workers Compensation Commission

LOWER COURT JUDICIAL OFFICER: Acting Deputy President Bill Roche

LOWER COURT DATE OF DECISION: 19 September 2006

LOWER COURT MEDIUM NEUTRAL CITATION: [2006] NSWWCCPD 234

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40660/06 WCC 17491-05

GILES JA McCOLL JA BASTEN JA

2 July 2007 HAIDER v JP MORGAN HOLDINGS AUST LTD t/as JP MORGAN OPERATIONS AUSTRALIA LTD

Mr Zaidi was an employee of the Respondent, JP Morgan Holdings Australia Ltd. On the evening of 20 August 2004, he went on a harbour cruise organised by an unincorporated association known as the "JP Morgan Social Club". As the cruise vessel was turning to dock, Mr Zaidi slipped, fell into the water and drowned. His wife, Ms Haider, made a claim for workers compensation benefits pursuant to s25 and s26 of the Workers Compensation Act 1987 (NSW), arising out of the death of her husband. The deceased's father, mother and brother made similar claims.

The Workers Compensation Commission constituted by an arbitrator found that Mr Zaidi died as a result of an injury arising out of or in the course of his employment and that his employment was a substantial contributing factor to his injury and death. The Respondent appealed against the arbitrator's determination. Acting Deputy President Roche upheld the appeal and substituted for the arbitrator's decision an award in favour of the Respondent. The Appellant brought the present appeal pursuant to s353 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW).

(i) Whether the Commission failed to identify and apply the correct legal test in relation to "injury".

(ii) Whether the Commission made findings for which there was no evidence.

(iii) Whether the Commission erred in dismissing an application to adduce further evidence.

(iv) Whether the Commission failed to take into account all relevant considerations in determining whether the employment concerned was a "substantial contributing factor" to the injury, for the purposes of s 9A of the Workers Compensation Act 1987 (NSW).

The Court of Appeal held, dismissing the appeal: (per Basten JA, Giles and McColl JJA agreeing)

There is no generally applicable "sufficient connection" test in deciding whether an injury arose out of or in the course of employment: [26]. Hatzimanolis v A.N.I. Corporation Ltd (1992) 173 CLR 473; Humphrey Earl Ltd v Speechley (1951) 84 CLR 126; Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281; Van Haeften v Caltex Oil (Australia) Pty Ltd (1995) 12 NSWCCR 250, considered.

It was open to the Acting Deputy President to make a distinction between support for the social club generally and support for a particular activity organised by the club; and between activities organised by the social club and activities organised by the employer itself. There was no error of law in his finding that an injury occurring in the course of the harbour cruise did not arise out of or in the course of the deceased's employment: [31].

In relation to (ii) (per Basten JA, McColl JA agreeing)

In general, an error of law will arise where there is no relevant and probative material capable of supporting a finding of fact, or where an inference is drawn from a particular fact which is not reasonably capable of supporting that inference: [33]. Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222; Bruce v Cole (1998) 45 NSWLR 163, applied.

The reasoning of the Commission demonstrated no failure to take into account relevant material, nor did it involve a factual finding without supporting material: [36].

The reference to 'no evidence' by the Acting Deputy President was intended to indicate that there was no additional evidence on the appeal beyond that on which the arbitrator made her findings. Accordingly there was no error of law in the nature of asserting that there was no evidence of a matter when there in fact was: [5].

In relation to (iii) (per Basten JA, Giles and McColl JJA agreeing)

An appeal to a Presidential Member of the Workers Compensation Commission from the decision of an arbitrator is subject to no greater constraints than a rehearing. The Acting Deputy President erred in fettering the exercise of his discretion through the inflexible application of the practice direction: [41], [47]. Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, referred to.

The Appellant did not establish that the error of the Acting Deputy President in disallowing the evidence was material to the decision to reject the Appellant's claim: [53].

In relation to (iv) (per Basten JA, Giles and McColl JJA agreeing)

The Acting Deputy President did not impermissibly limit the matters he took into consideration in deciding whether the employment was a substantial contributing factor to the injury: [61]. Favelle Mort Ltd v Murray (1976) 133 CLR 580; Mercer v ANZ Banking Group Ltd (2000) 48 NSWLR 740; McMahon v Lagana [2004] NSWCA 164; WorkCover Authority of NSW v Walsh [2004] NSWCA 186; Murray v Shillingsworth [2006] NSWCA 367, referred to.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40660/06 WCC 17491-05

GILES JA McCOLL JA BASTEN JA

2 July 2007 HAIDER v JP MORGAN HOLDINGS AUST LTD t/as JP MORGAN OPERATIONS AUSTRALIA LTD Judgment 1 GILES JA: Subject to what appears below, I agree with the reasons of Basten JA. 2 In my opinion, the "no evidence" ground should be rejected for a rather different reason. 3 It is necessary to understand what the Acting Deputy President meant when he said at [78] that there was no evidence. For convenience, the relevant passage is again set out - "I do not agree with the arbitrator's statement that the allocation of time and resources by the Appellant Employer to the social club was 'substantial'. The evidence was that the social club fees were deducted from workers wages through JP Morgan payroll system and committee meetings were held during working hours. There was no evidence as [to] whether that involved any or any substantial allocation of resources by the Appellant Employer. There was no evidence that the use [of] JP Morgan's internal email system would have involved any cost to the company. It was merely a convenient way for the social club to communicate its activities to its members." (emphasis added) 4 The arbitrator evaluated the time and resources as substantial. The Acting Deputy President declined to do so. As Basten JA has said, this was part of fact finding. The evaluation was based on evidence concerning the deduction of workers' wages through the payroll system, the holding of committee meetings during working hours and the use of JP Morgan's internal email system. When the Acting Deputy President said that there was "no evidence" as to whether the first two of these involved any or any substantial allocation of resources by the employer, he must have meant no evidence other than the evidence of those matters. Similarly, when he said that there was "no evidence" that the use of JP Morgan's internal email system would have involved any cost to the company, he must have meant that there was no evidence beyond the fact of the use of the internal email system. 5 It was not suggested that, in either case, there was further evidence. The Acting Deputy President was not denying the existence of evidence on which the arbitrator made her evaluation, and on which he made his different evaluation. Accordingly, there was no error of law in the nature of asserting that there was no evidence of a matter when in fact there was. 6 I agree with the orders proposed by Basten JA. 7 McCOLL JA: I agree with Basten JA. 8 BASTEN JA: Mr Mohammad Qasim Syed-Zaidi was employed by JP Morgan Operations Australia Ltd ("the employer") as an assistant accounting manager in the company's Sydney office. On the evening of Friday, 20 August 2004, he went on a harbour cruise organised by an unincorporated association known as the "JP Morgan Social Club". As the cruise vessel, the "Vagabond Star", was turning to dock at the end of the cruise, Mr Zaidi slipped and fell into the harbour and drowned. Both his wife, Ms Tahira Haider (the Appellant) and members of Mr Zaidi's family (his parents and siblings) made claims for compensation payable on the death of a worker, pursuant to ss 25 and 26 of the Workers Compensation Act 1987 (NSW) ("the 1987 Act"). Those sections made similar provision in respect of a death in relation to wholly dependent and partly dependent dependants, respectively. 9 These claims gave rise to an initial question as to whether Mr Zaidi's death resulted from an "injury" which is defined to mean, relevantly, a personal injury "arising out of or in the course of employment": the 1987 Act, s 4(a). 10 If the death resulted from such an injury, the 1987 Act prescribed a further requirement, namely that the employment concerned was a "substantial contributing factor" to the injury: s 9A(1).

Proceedings in Commission 11 The dispute concerning these requirements in relation to the injury were set down before the Workers Compensation Commission ("the Commission") constituted by an arbitrator "for conference and arbitration" on 2 March 2006. Although, as the arbitrator noted in a statement of reasons for decision dated 7 April 2006, all parties closed their cases on 2 March 2006, subsequent applications were made to reopen the arbitration by both the claimants and the employer: at [7]. The claimants sought to tender further material by way of evidence to which the employer sought to respond. The arbitrator declined to receive the material, but it was the subject of a further application before an Acting Deputy President and his refusal to accept the material became the subject of a ground of appeal in the present proceedings. 12 The "determination" made by the arbitrator resulted in a direction scheduling the arbitration for a further teleconference on 10 May 2006 and an order that the employer pay the claimants' costs. Neither of these directions or orders was challenged, but they were consequent upon findings made by the arbitrator at [27] in the following terms: "(a) Mohammad Qasim Syed Zaidi died as a result of an injury sustained on 20 August 2004 when he fell from the "Vagabond Star" and drowned. (b) The injury and subsequent death arose out of or in the course of his employment. (c) Employment was a substantial contributing factor to the injury and death."

The employer appealed against the arbitrator's "decision". 13 A party to a dispute in connection with a claim for compensation may, with leave of the Commission, appeal "against a decision in respect of the dispute" in circumstances where the decision of the Commission was made by an arbitrator: Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("the 1998 Act"), s 352(1). An appeal under that section is to be "by way of review of the decision appealed against": s 352(5). There is further provision in relation to evidence in s 352(6), in the following terms: "(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission." 14 In determining an appeal, the Commission is empowered to confirm or revoke the decision made by the arbitrator, or to make a new decision in its place, or to remit the matter for further consideration by an arbitrator: s 352(7). 15 Proceedings before the Commission generally are governed by s 354, which provides in part: " 354 Procedure before Commission (1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits. (2) The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits. (3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms." 16 The appeal brought by the employer was heard by Acting Deputy President Roche, who upheld the appeal and substituted for the arbitrator's decision an award in favour of the employer: JP Morgan Holdings Australia Ltd t/as JP Morgan Operations Australia Ltd v Haider & Ors [2006] NSWWCCPD 234.

Jurisdiction of this Court 17 The right to appeal to this Court against the decision of a Deputy President is to be found in s 353 of the 1998 Act, which relevantly provides: " 353 Appeal against decision of Commission constituted by Presidential member (1) If a party to any proceedings before the Commission constituted by a Presidential member is aggrieved by a decision of the Presidential member in point of law, the party may appeal to the Court of Appeal. … (5) In this section, decision includes an award, interim award, order, determination, ruling, opinion and direction." 18 The Appellant did not dispute that she needed to identify some point of law material to the decision reached by the Acting Deputy President. However, she faced some difficulty in this respect. As the appeal was ultimately presented, there were four respects in which a relevant error was sought to be identified. These were:

(a) failure by the Commission to identify and apply the correct legal test in relation to "injury";

(b) making findings for which there was no evidence;

(d) failure to take into account all relevant considerations in determining whether the employment concerned was a "substantial contributing factor" to the injury, for the purposes of s 9A of the 1987 Act. 19 For the reasons which follow, none of these challenges is made out and accordingly the appeal must be dismissed.

Failure to state legal test 20 That compensation may be payable to a worker who suffers personal injury away from the place of his or her employment has been accepted in this State, at least since the Workers' Compensation Act 1926 (NSW), s 7. However, what constituted a sufficient connection with the worker's employment has been a matter which permits of no bright-line test of general application. In Hatzimanolis v A.N.I. Corporation Ltd (1992) 173 CLR 473 at 478, the joint judgment of Mason CJ, Deane, Dawson and McHugh JJ stated: "From a very early stage in the history of the law of workers' compensation, it was recognized that the course of employment covered not only the actual work which a person was employed to do but also 'the natural incidents connected with the class of work' [ Charles R Davidson & Co v M'Robb [1918] AC 304 at 321]. In 1931 in Whittingham v Commissioner of Railways (WA) [(1931) 46 CLR 22 at 29], Dixon J said that there can 'no longer be any doubt that the accident must happen while the employee is doing something which is part of or is incidental to his service'. But his Honour went on to say that it was 'another matter to be sure what is included within this conception'. He thought that, in considering what was incidental to service, the sufficiency of the connexion between the worker's employment and what he was doing at the time that he was injured could only be a matter of degree in which time, place, practice and circumstances as well as the conditions of employment had to be considered." 21 As the joint judgment noted, in Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281 at 294, Dixon J had attempted to provide more particularity in relation to injuries which were not sustained during actual work, suggesting that whether the injury was sustained in the course of employment depended upon whether the worker was doing something which he or she was "reasonably required, expected or authorized to do in order to carry out his actual duties": Henderson, at p 294. In Hatzimanolis, the joint judgment referred with approval to the adoption by Deane J in The Commonwealth v Lyon (1979) 24 ALR 300 at 303 of the language in Henderson as providing a useful principle of inclusion, rather than a criterion of exclusion: Hatzimanolis at p 481. However, the Court expressed the opinion that the language adopted in Henderson (and Humphrey Earl Ltd v Speechley (1951) 84 CLR 126 at 133), "no longer accurately covers all cases of injury which occur between intervals of work and which are held to be within the course of employment": p 482. The High Court in Hatzimanolis upheld a finding by the Compensation Court (NSW) that an injury sustained by a worker in a camp near Mount Newman in Western Australia, during a sightseeing journey on his day off, was an injury sustained "within the course of his employment" because it happened "during an interval occurring within an overall period or episode of work and while engaged, with his employer's encouragement, in an activity which his employer had organized": p 476. 22 After dealing with a number of cases in which injuries which occurred during an interval or interlude in the overall period or episode of work were seen as satisfying the statutory test, the joint judgment in Hatzimanolis continued (at p 484): "Accordingly, it should now be accepted that an interval or interlude within an overall period or episode of work occurs within the course of employment if, expressly or impliedly, the employer has induced or encouraged the employee to spend that interval or interlude at a particular place or in a particular way. Furthermore, an injury sustained in such an interval will be within the course of employment if it occurred at that place or while the employee was engaged in that activity unless the employee was guilty of gross misconduct taking him or her outside the course of employment. In determining whether the injury occurred in the course of employment, regard must always be had to the general nature, terms and circumstances of the employment' and not merely to the circumstances of the particular occasion out of which the injury to the employee has arisen'. [ Danvers v Commissioner for Railways (NSW) (1969) 122 CLR 529 at 537]." 23 In reliance on this passage, Priestley JA in Van Haeften v Caltex Oil (Australia) Pty Ltd (1995) 12 NSWCCR 250 at 255 concluded that Hatzimanolis gave guidance to cases which extended beyond those of an employee required to work in a remote camp. Danvers may be seen as falling within the category of camp accommodation, but another case considered in Hatzimanolis, The Commonwealth v Oliver (1962) 107 CLR 353, involved an employee who sustained injury whilst playing cricket on a concrete apron in front of a hangar at an aircraft factory, during the lunch break, and clearly fell into a different class. The paragraph from Hatzimanolis set out above at [22] commenced with reference to Oliver's case and there is no doubt that Priestley JA (with whom Clarke and Meagher JJA agreed) was correct in concluding that Hatzimanolis gave explicit guidance in relation to cases extending beyond its own circumstances. 24 None of this was seriously in contention in the present case. However, the Appellant founded her argument upon a passage in the judgment of Priestley JA in Van Haeften, following consideration of two earlier Full Court decisions in New South Wales, to the following effect (p 256): "When the way in which those two cases was approached is taken into account, along with the indications given by the High Court in Hatzimanolis that quite apart from the camp cases, the Henderson Speechley test no longer accurately covers all the cases, it seems to me that the Commissioner would have been entitled to come to the conclusion which he came to for a more accurate reason than the one he relied on, that is that there was a sufficient connection between the game at the Caltex field on the Sunday and the worker's employment, to justify the conclusion that he was 'in the course of his employment' when he was injured." 25 This passage, it was contended, required that the Commission in the present case apply a "sufficient connection" test in order to establish whether the statutory language was satisfied or not. It was then contended that the Commission had erred in holding that injury did not arise out of, or in the course of, employment on the basis that the employer permitted and authorised the activities of the social club, but had not organised them, nor taken active steps in encouraging or inducing employees to participate. 26 Although it is fair to say that this last distinction may fairly encapsulate the reasoning of the Commission, it is not possible to identify the reference in the judgment of Priestley J to "sufficient connection" as an attempt to formulate a new or unconstrained test, derived from his Honour's consideration of Hatzimanolis. To say that the definition of "injury" requires a connection between the injury and the employment of the injured worker is unexceptionable: further, to describe the relevant connection as "sufficient" is neither to identify criteria by which the connection is to be assessed, nor to impose constraints upon the Tribunal required to apply the statutory language. It is tolerably clear that his Honour was merely identifying the concept, rather than criteria. To similar effect, in Henderson, after identifying certain grounds relied upon by the magistrate, Dixon J noted that they were not necessarily inconsistent with the existence of "a sufficiently proximate causal connection between the employment and the accident" to satisfy the statutory condition. This too was a description of the exercise, not the specification of a criterion. 27 The Appellant's case may have been different if there were authority for the proposition that, on the facts as found or agreed in the Commission, the only conclusion reasonably open was that the statutory test was satisfied: see Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at [24]-[27] (Gleeson CJ, Gummow and Callinan JJ); Seltsam Pty Ltd v Gahleb [2005] NSWCA 208, (2005) 3 DDCR 1 at [148]-[158]. However, as counsel agreed, she could not make that proposition good. 28 The facts relevant to this question may be shortly stated. The social club was an informal association with no legal identity. Nevertheless, it was known as the "JP Morgan Social Club", from which it may be inferred that the employer was content to permit its name to be associated with the organisation. Indeed, it went further and provided active support for the social club by permitting use of its email system for the distribution of information about events, allowed committee members to take time during work hours to attend committee meetings of the club, and arranged for membership fees to be deducted from staff pay by its payroll department. Staff were permitted to wear "mufti" at work on the day of the harbour cruise. On the other hand, a statement from a committee member, Mr Barton, asserted that the employer "does not sponsor the Social Club financially" other than by way of the provision of resources referred to above. Although the ticket sales for the harbour cruise netted less than half the cost of the cruise, there was evidence that the shortfall was made up "through the JP Morgan Social Club subscriptions". 29 It was suggested on behalf of the Appellant that the charter of the social club was beneficial to the employer, as it sought to increase morale and interaction between staff, cultivate a corporate culture and assist in the communication of employer-sponsored events amongst club members: Commission Reasons, at [36]. To similar effect, the senior legal adviser to the employer stated that it "recognizes and permits the continued existence of the Social Club for amongst other things the staff morale benefits the firm sees arising from the Social Club's existence": at [38]. Against this background, the Commission made a number of findings, somewhat discursively set out at [77]-[87]. At [77], the Commission stated: "In my opinion the evidence in the present case does no more than establish that the Appellant Employer gave permission for the social club to operate. There is no doubt that the Appellant Employer took steps to facilitate the operation of the club, but that does not mean that activities organised by the social club were JP Morgan activities that employees were encouraged to attend as something that was part of or incidental to their duties." 30 Further, the Commission distinguished between activities of the social club and activities which were "JP Morgan sponsored" events. A sponsored event was one which was organised by the employer, involved marketing and co-ordination by staff, the use of firm logos and other forms of identification and was funded by the employer. The harbour cruise did not fall into this category. For that reason, it was distinguishable from the sports event in Van Haeften which involved organisation, promotion and commitment of resources on the part of the employer: at [80]. 31 Underlying this reasoning were two distinctions: one was a distinction between support for the social club generally and support for a particular activity organised by the club; the other was a distinction between activities of the social club and activities organised by the employer itself. There was no error of law in drawing these distinctions or in finding that an injury which occurred in the course of the harbour cruise, which was entirely outside regular work hours, did not arise out of or in the course of the deceased's employment.

The "no evidence" ground 32 Whilst accepting that she was precluded from challenging findings of fact, the Appellant nevertheless sought to assert legal error in particular findings based on assertions by the Commission that there was "no evidence" to support particular inferences. 33 The basis for this challenge was unclear, but appeared to derive from the assertion by the Commission that there was "no evidence" in relation to a particular matter. Needless to say, a statement to that effect, even if wrong, does not demonstrate legal error. Broadly speaking, error of law will arise in circumstances where a fact is found where there is in truth no relevant and probative material capable of supporting it, or an inference is drawn from a particular fact, which is not reasonably capable of supporting the inference: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367 (Deane J), referred to by Gleeson CJ in Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222 at [25]; and see Bruce v Cole (1998) 45 NSWLR 163 at 187-189 (Spigelman CJ). 34 In a particular case, it may be established that a statement in the reasons of a tribunal that there is "no evidence" to support a particular finding demonstrates that the tribunal has overlooked significant and potentially probative material which was before it. That may involve a breach of procedural fairness: see Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 at [79]-[80] (Gaudron and Gummow JJ). However, that was not this case. 35 The key statements in issue appear in the reasons of the Commission at [78] which need to be set out in full: "I do not agree with the Arbitrator's statement that the allocation of time and resources by the Appellant Employer to the social club was 'substantial'. The evidence was that the social club fees were deducted from workers' wages through JP Morgan's payroll system and committee meetings were held during working hours. There was no evidence as [to] whether that involved any or any substantial allocation of resources by the Appellant Employer. There was no evidence that the use [of] JP Morgan's internal email system would have involved any cost to the company. It was merely a convenient way for the social club to communicate its activities to its members." (Emphasis added.) 36 It is clear from this passage that the Commission was expressly adverting to the basis upon which it was said that substantial resources were allocated by the employer, acknowledging that certain resources were provided, but declining to draw the inference that they were "substantial". This reasoning demonstrates no failure to take into account relevant material, nor does it involve a factual finding without supporting material. It is the exercise of an evaluative judgment which is an essential element of the fact-finding process and which is not reviewable in the present proceedings.

Rejection of evidence 37 It is convenient to deal next with the complaint that the Commission refused the tender of further evidence which had been sought to be provided to the arbitrator, an application which she had treated as an application to reopen the case and declined. The same material was tendered before the Deputy President on appeal. 38 The evidence sought to be adduced may be sufficiently described as a document dated 20 August 2004, which was apparently a summary slip of deposits with St George Bank for the account of "Vagabond Cruises". Numerous cheques were identified, but one in particular identified the drawer as "JP Morgan - 9984 [or 9184]". The amount was $11,386. This was said to constitute evidence in support of the proposition that the cruise had been paid for by the employer. The employer's response was to seek to tender a statement by Mr Fitzgibbon, Vice-President - Assistant General Counsel, that the cheque in question "is not the property of JP Morgan" and that the account on which it was drawn "is not an account of JP Morgan or its affiliates". Accordingly, Mr Fitzgibbon stated, "such deposit was not paid by or on behalf of JP Morgan or its affiliates". 39 Pursuant to s 352(6) of the 1998 Act (set out at [13] above) leave is required from the Commission in order to introduce on appeal fresh evidence, evidence in addition to that received below or evidence in substitution for that received below. 40 Such material was dealt with in Practice Direction No. 6, issued by the Commission, as "new evidence" on appeal. The practice direction provided a number of procedural steps to be followed by a party seeking to tender "new evidence", which were apparently not followed in the present case, though nothing turned on that. The Direction also stated: "In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case." 41 This language appears to reflect the conditions which must generally be met before "fresh evidence" is admitted: see Akins v National Australia Bank (1994) 34 NSWLR 155 at 160. However, to limit the admission of "new" evidence to such circumstances is to ignore the fact that the statute expressly provides an alternative to "fresh" evidence by express reference to "evidence in addition to or in substitution for" the evidence received below. To apply a test such as that set out in the Practice Direction, although introduced by the amelioratory words "in general", is apt to give rise to error by treating the discretion as fettered in a way which it is not: see in relation to the use of the term "further" evidence in s 75A(8) of the Supreme Court Act 1970 (NSW) as applicable in this Court, Aztech Science Pty Ltd v Atlanta Aerospace (Woy Woy) Pty Ltd [2005] NSWCA 319; (2005) 55 ACSR 1 at [98]-[108]. Further, it is to ignore the reduction of formality and technicality and the requirement to act according to equity, good conscience and the substantial merits of the case, as mandated by s 354(1)-(3) (see [15] above). 42 The effect of provisions such as s 354(1)-(3) in relation to a tribunal from which an appeal lies in point of law, is not capable of precise delineation. It gives rise to similar difficulties as does as a privative clause which purports to undo the effect of mandatory constraints imposed on a tribunal: see Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476. The reconciliation of such provisions requires an exercise in statutory construction. However, it is clear that such a provision does not free the Commission from the obligation to apply the law, as contained in the 1987 Act and the 1998 Act, in exercising its powers to make an award or decline to make an award: cf Thomas v Airlines of NSW Pty Ltd (1964) 64 SR NSW 176 at 185 (Sugerman J), referred to in Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 at 30 (Gleeson CJ and Handley JA). As no submissions were made in relation to the operation of these provisions in the present case, they need not be addressed further, in relation to the legal criteria by which the Appellant's claim was to be determined. 43 The reasons given by the Commission for rejecting the evidence were threefold. The first reason relied upon the facts that the arbitrator had rejected the evidence and that no challenge had been made to her ruling: at [31]. The Deputy President continued: "To allow the deposit slip into evidence on appeal when no challenge has been made to the Arbitrator's refusal to admit the document would deny procedural fairness to the Appellant Employer as it has now been denied the opportunity to seek to introduce the statement from Mr Fitzgibbon of 10 March 2006." 44 With respect, this ground for refusal to admit a document is difficult to support. Different considerations may well have applied to the arbitrator to whom application was made only after the arbitration conference had been concluded. Further, on the appeal the document could well have been tendered conditionally, so as to permit the evidence of Mr Fitzgibbon to be adduced in response. Assuming for present purposes that the evidence was material and probative, the statutory obligations and powers imposed and conferred on the Tribunal suggest that the material should have been considered in order to address the substantial merits of the case. Neither the arbitrator's rejection, nor the failure to challenge that ruling, nor the potential procedural fairness objection, stood in the way of that course. 45 The second reason that the Deputy President gave was that he was not satisfied that "with reasonable diligence the evidence could not have been obtained before the arbitration hearing". However, that, with respect, appears to be a direct application of the guidance given by the Practice Direction, with the result that there was a failure to consider the possibility that the evidence might be treated as additional evidence which did not need to satisfy the common understanding of "fresh" evidence. A more flexible test was available, but not applied. 46 A third and separate reason given by the Deputy President was a lack of satisfaction that "the failure to allow the fresh evidence will cause a substantial injustice in all the circumstances of this case". Again, that appears to be a direct reflection of the practice direction, the context for the failure to form the relevant satisfaction again being limited to a consideration of "fresh" evidence. 47 The proceedings by way of "appeal" to a Presidential member were said to be by way of "review" of the decision of the arbitrator: s 352(5). The broad power to admit, with leave, further evidence and the power of the Presidential member to confirm or revoke the decision and to make a new decision in its place indicate that the appeal is subject to no greater constraints than a rehearing: see Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [13]. The constraints are not greater because effect must be given to the procedural consequences of s 354(1)-(3), which apply equally to hearings before an arbitrator and before a Presidential member. Accordingly, the Deputy President misdirected himself as to the test to be applied in considering whether additional evidence should be admitted. 48 Nevertheless, there remains a live question as to whether the error was material in the sense that it was reasonably capable of affecting the outcome of the case. 49 In assessing this question, the first step is to evaluate the deposit summary slip in the context of the evidence already given. First, there was the evidence of Mr David Barton, who was a committee member of the social club. He asserted, as already noted, that JP Morgan did not "sponsor the social club financially for any of its functions", and that whilst non-members paid full price for functions, members obtained tickets at a reduced price. According to the agreed facts, the employer made no payment towards the cost of the harbour cruise. 50 The deposit slip does little to undermine these propositions. It is entirely consistent with the proposition that the cruise company was paid by JP Morgan Social Club, that the name "JP Morgan" should appear on the summary slip showing deposits. It is commonplace for the drawer's name to be abbreviated on such documents. The abbreviation need not be that of the employer. 51 It is also highly probable that the social club had a bank account in its own name. It needed an account in order to receive subscriptions by way of pay deduction, from several hundred employees of the business. In all probability, it would have used its own account in order to pay for functions such as the harbour cruise and other expenses incurred in the exercise of its activities. 52 Further, if such evidence were to be admitted, the employer would have sought and obtained an opportunity to respond, as it did before the arbitrator. The statement by Mr Fitzgibbon, prepared for the purposes of the arbitration, would no doubt have been relied upon if the Deputy President had admitted the summary slip. That statement included a categorical denial that the account on which the cheque was drawn was an account of the employer or its affiliates. Counsel for the Appellant suggested that she should have had the opportunity to cross-examine the officer. However, in the absence of any suggested basis for doubting the accuracy of the statement, it should be taken at face value. Indeed, the present complaint has an air of artificiality. If there had ever been a suggestion that the employer financed the event in question, it could have been dealt with by either Mr Fitzgibbon or Mr Barton. If the account might have been that of the social club, Mr Barton could have been asked to identify it. No such step was taken, presumably because his statement that the event was not financed by the employer was accepted. The summary slip is neutral as to the correctness of that understanding. Although the statement from Mr Barton was originally tendered by the employer, it is highly unlikely that Mr Barton, or some other committee member of the social club, would have declined to answer a simple question from a solicitor for the Appellant as to whether the account number shown on the summary slip of deposits was indeed an account of the social club or not. It seems that simple step was not taken. In short, the new material does not support the inference sought to be derived from it. 53 It is a matter for the Appellant to establish its grounds for relief. Although it has succeeded in establishing that the refusal to permit additional evidence may have been the subject of legal error, it has not established that the error was material to the decision of the Deputy President to reject the Appellant's claim. Accordingly the ground of appeal must fail.

"Substantial contributing factor" 54 The Appellant accepted, as she was obliged to do, that the requirement of s 9A of the 1987 Act, namely that the employment concerned be a substantial contributing factor to the injury, provided an additional element which must be satisfied in order for her claim to succeed. The employment did not need to be "the" substantial contributing factor, but only "a" substantial contributing factor. 55 Because this was an additional consideration, the Commission did not need to address its terms unless satisfied that there was an "injury" arising out of or in the course of employment, for the purposes of s 4 of the 1987 Act. The arbitrator was, but the Deputy President was not, satisfied that there was such an injury. Nevertheless, the Deputy President did address the operation of s 9A on the assumption that he was wrong in relation to the nature of the "injury". 56 It is not necessary for present purposes to rehearse the caselaw in relation to the operation of s 9A. It was addressed by this Court in Mercer v ANZ Banking Group Ltd (2000) 48 NSWLR 740 at 747-749 (Mason P, Meagher and Beazley JJA agreeing). As was noted in that case, the language of s 9A introduced a significant variation to the definition of injury in s 6 of the Workers' Compensation Act 1926 (NSW), which required that employment be "a contributing factor" to the injury: see Favelle Mort Ltd v Murray (1976) 133 CLR 580. However, as noted by Giles JA in Dayton v Coles Supermarkets Pty Ltd [2001] NSWCA 153, (2001) 22 NSWCCR 46 at [29] a finding as to relative contributing factors is a finding of fact and a question of impression and degree. See also McMahon v Lagana [2004] NSWCA 164 at [32] (Hodgson JA, Santow JA and Stein AJA agreeing); Workcover Authority of NSW v Walsh [2004] NSWCA 186 at [5] (Hodgson JA), [99] (Tobias JA) and Murray v Shillingsworth [2006] NSWCA 367 at [53] (Einstein J). 57 In the present case, the decision of the Commission was challenged on the basis that the Deputy President had addressed the matters set out in s 9A(2) of the 1987 Act, without identifying them as "examples" of matters to be taken into account, but rather on the basis that they were an exclusive list. To understand the nature of the challenge, it is necessary to refer to the chapeau to sub-s (2), although the complete list of matters identified need not be reproduced: "(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker's employment was a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination): (a) the time and place of the injury … ." 58 There may be some ambiguity in relation to the status of the "examples" given: as they are examples of "matters to be taken into account" it is at least arguable that their consideration is mandatory, to the extent that they are relevant in a particular case. In any event, there can have been no error on the part of the Deputy President in giving consideration to each. The Appellant is correct to note that not only are these "examples" but that the "kinds" of matters that can be taken into account are not limited by the provision. However, that is not a prescription of additional matters; rather, it is a disavowal of any element of proscription. 59 For present purposes, the Appellant needed to make good the assertion that the Deputy President had disregarded other matters which were not merely relevant but relevant in the sense of mandatory considerations. That proposition was not made good. In the paragraph preceding consideration of the specific paragraphs of sub-s 9A(2), the Deputy President stated, at [101]: "If it is thought, contrary to my finding, that the deceased's death was caused by or arose out of his employment, that circumstance is relevant in assessing whether employment was a substantial contributing factor, but it is not determinative. However, to use the words of Hodgson JA in McMahon at [38], 'there were countervailing factors, including the circumstance that the [deceased] was not performing any positive duties', and the circumstance that the injury and consequential death occurred during an interval between two discrete periods of work. The last fact is to be contrasted to McMahon where the injury occurred during an interval in an overall period of work. As the High Court held in Hatzimanolis , an injury sustained during such an interval is more readily seen as done in the course of employment than something that is done after a daily period of work has been completed." 60 Following his consideration of the stated matters, his Honour continued at [103]: "In all the circumstances I do not believe it can reasonably be concluded, bearing in mind the provisions of section 9A(2), that the deceased's employment was a substantial contributing factor to his injury and death. In my opinion the substantial contributing factors to the deceased's injury and death were the deceased attending a social function where a large quantity of alcohol was consumed (by him and others), the dance floor was slippery and a crew member opened a gate before the boat was securely docked in circumstances where the boat was still rocking." 61 The Deputy President did not limit the matters he took into account impermissibly. If it were relevant, the Appellant fails at this hurdle as well as in relation to her challenge to the findings with respect to the "injury".

Conclusion 62 No material error having been demonstrated, in point of law, the appeal must be dismissed with costs. **********

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Workers' Compensation Act 1926(NSW)

(1995) 12 NSWCCR 250

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Cases Cited (26)