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[2011] NSWCA 330
Court of Appeal (NSW)
2011-10-10
Giles JA, Campbell JA
Original judgment source is linked above.
[2009] FCAFC 75 Akora Holdings Pty Ltd v Ljubicic [2008] NSWCA 339 Aluminium Louvres & Ceilings Pty Ltd v Zheng [2006] NSWCA 34 Australian Gas Light Co v Samuels (1993) 9 NSWCCR 616 Bahadori v Permanent Mortgages Pty Ltd [2008] NSWCA 150; (2008) 72 NSWLR 44 Browne v Dunn (1893) 6 R 67 Cook v Midpart Pty Ltd [2008] NSWCA 151 Duinker v St Vincent de Paul Society Aged and Special Services Ltd (Lewisham Nursing Home) [2008] NSWCA 127 Fletcher International Exports Pty Ltd v Lott [2010] NSWCA 63 Kalokerinos v HIA Insurance Services Pty Ltd [2004] NSWCA 312 Litynski v Albion Steel Pty Ltd (1994) 10 NSWCCR 287 Parker v Comptroller-General of Customs [2009] HCA 7; (2009) 252 ALR 619 Pettitt v Dunkley [1971] 1 NSWLR 376 Sapina v Coles Myer Ltd [2009] NSWCA 71 Shellharbour City Council v Rigby [2006] NSWCA 308 South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 State Transport Authority of New South Wales v Chemler [2007] NSWCA 249 Tan v National Australia Bank Ltd [2008] NSWCA 198 Watson v Hanimex Colour Services Pty Ltd (1992) 8 NSWCCR 190 West v Mead [2003] NSWSC 161; (2003) 13 BPR [24,431] Winter v New South Wales Police Force [2010] NSWWCCPD 121 Category: Principal judgment Parties: NSW Police Force (Appellant) Gregory Winter (Respondent) Representation: Counsel G M Watson SC; D G Saul (Appellant) B J Gross QC; I Latham (Respondent) Solicitors SMK Lawyers (Appellant) Baker & Edmunds (Respondent) File Number(s): 2011/51147 Decision under appeal Citation: Winter v New South Wales Police Force [2010] NSWWCCPD 121 Date of Decision: 2010-11-16 00:00:00 Before: B Roche, Deputy President File Number(s): A1-000438/10
Judgment 1GILES JA : I agree with Campbell JA. 2CAMPBELL JA : Nature of the Proceedings 3The New South Wales Police Force (" the Force ") seeks leave to appeal from a decision of Deputy President Roche in the Workers Compensation Commission on 16 November 2010 (" the Decision Below "). The Decision Below is Winter v New South Wales Police Force [2010] NSWWCCPD 121. It revoked the decision of an Arbitrator of the Workers Compensation Commission made on 18 May 2010 (" the Arbitrator's Decision ") that had dismissed the Respondent's claim for worker's compensation. The Decision Below also ordered that the matter be remitted to another Arbitrator for re-determination. 4The Respondent is a police officer who sought workers compensation under the Workers Compensation Act 1987 (" the 1987 Act ") for psychological injury that he alleged he had received in the course of his employment with the Force. He claimed weekly payments of compensation from 8 September 2008 onwards. He also claimed an award for medical and related expenses. 5In the Arbitrator's Decision the Arbitrator held that the Respondent had not suffered a psychological injury arising out of, or in the course of, his employment as defined in ss 4 and 11A(3) of the 1987 Act. The Arbitrator also found that there was insufficient evidence that the Respondent had suffered an ongoing incapacity arising from any psychological injury he suffered at work on 8 September 2008. In consequence, the Arbitrator made an award for the Force concerning both the claim for weekly payments and the claim for medical and related expenses. 6At [172] of the Decision Below the Deputy President identified the two grounds of appeal that had been pressed on the hearing of the appeal from the Arbitrator's Decision: "... first, that the Arbitrator denied the worker procedural fairness and, second, that the Arbitrator failed to give adequate reasons." 7The Decision Below upheld both those grounds of appeal. 8The draft Notice of Appeal to this Court contends that the Decision Below involved four erroneous decisions in point of law, namely: "1 The Deputy President erred in holding that there was a denial of procedural fairness in the decision of the Arbitrator dated 18 May 2010. 2 The Deputy President erred in holding that the Arbitrator's view about the credibility of the Respondent was relevant to the Arbitrator's conclusion dismissing the Respondent's claim. 3 The Deputy President erred in holding that the Arbitrator had failed to give adequate reasons for her decision. 4 The Deputy President erred in remitting the matter for re-determination where there was no error identified in, or disagreement with, the Arbitrator's conclusion that the Respondent had failed to prove that he suffered incapacity as a result of the alleged workplace injury." Leave to Appeal 9In my view the questions involved in this case are of sufficient importance to warrant the grant of leave to appeal. Relevant Legislative Provisions The Right to Compensation 10Section 4 of the 1987 Act provides: "In this Act: injury : (a) means personal injury arising out of or in the course of employment, (b) includes: (i) a disease which is contracted by a worker in the course of employment and to which the employment was a contributing factor, and (ii) the aggravation, acceleration, exacerbation or deterioration of any disease, where the employment was a contributing factor to the aggravation, acceleration, exacerbation or deterioration, ..." 11Section 9A(1) of the 1987 Act provides: "No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury." 12Section 11A of the 1987 Act provides: "(1) No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment or dismissal of workers or provision of employment benefits to workers. ... (3) A psychological injury is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system." Procedure in the Commission 13Section 366 Workplace Injury Management and Workers Compensation Act 1998 (" the WIM Act ") establishes the Workers Compensation Commission of New South Wales. Section 368(1) provides that the Commission consists of a President, Deputy Presidents, a Registrar, and Arbitrators. Section 4 WIM Act defines Presidential member as meaning the President or a Deputy President. 14The procedure before the Commission is provided for by s 354 WIM Act : "(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. (4) Proceedings need not be conducted by formal hearing and may be conducted by way of a conference between the parties, including a conference at which the parties (or some of them) participate by telephone, closed-circuit television or other means. (5) Subject to any general directions of the President, the Commission may hold a conference with all relevant parties in attendance and with relevant experts in attendance, or a separate conference in private with any of them. (6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing. (7) An assessment or determination is to be made by the Commission having regard to such information as is conveniently available to the Commission, even if one or more of the parties to the assessment or determination proceedings does not co-operate or ceases to co-operate. (7A) The Commission may dismiss proceedings before it before or during the conduct of proceedings: (a) if it is satisfied that the proceedings have been abandoned, or (b) if it is satisfied that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, or (c) for any other ground of dismissal specified in the Rules ..." 15Section 294 WIM Act also regulates the procedure of the Commission: "(1) If a dispute is determined by the Commission, the Commission must as soon as practicable after the determination of the dispute issue the parties to the dispute with a certificate as to the determination. (2) A brief statement is to be attached to the certificate setting out the Commission's reasons for the determination ..." Appeal from an Arbitrator to a Presidential Member 16An appeal from an Arbitrator to a Presidential member of the Commission can be brought in accordance with s 352 WIM Act . In the form it had at the time of the Decision Below, s 352 provided: "(1) A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator. ... (5) An appeal under this section is to be by way of review of the decision appealed against. ... (7) On appeal, the decision may be confirmed or may be revoked and a new decision made in its place. Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission. 17In the present case, Roche DP granted leave to appeal from the Arbitrator's Decision. 18Section 352(5) as quoted above, was amended by the Workers Compensation Legislation Amendment Act 2010 . However, the amendment had not commenced at the time of the Decision Below, and so does not bear upon this judgment. 19In conducting a "review of the decision appealed against" under s 352(5), a Presidential member: "... must decide whether the original decision is wrong or, as it is often put in the context of administrative appeals on merits, must decide what is the true and correct view. If s/he does so decide then s/he should substitute his or her own views, unless it is an appropriate case to remit." (Per Spigelman CJ, Basten JA and Bryson AJA agreeing, State Transport Authority of New South Wales v Chemler [2007] NSWCA 249 at [30]). In that statement of principle, " true and correct view" should be understood as synonymous with " preferable or correct decision" : Sapina v Coles Myer Ltd [2009] NSWCA 71 at [56]. 20Under the previous legislation relating to an appeal to a judge of the Compensation Court, the power to " review " has been held to confer wider powers than would be involved in a mere appeal, but not so wide as to treat the primary decision as if it did not exist: Watson v Hanimex Colour Services Pty Ltd (1992) 8 NSWCCR 190 at 205-206 per Kirby P; Australian Gas Light Co v Samuels (1993) 9 NSWCCR 616 at 625 per Meagher JA. One way in which a " review " by a judge of the Compensation Court was not a totally fresh beginning of the case was that the judge was free to decline to permit an appellant to run a totally different case to that run at first instance, with different evidence: Litynski v Albion Steel Pty Ltd (1994) 10 NSWCCR 287 at 296-297; Sapina at [32]. As Gleeson CJ pointed out in Litinsky , the very existence of the power of the Compensation Court Judge to decline review showed that the " review" was not a totally fresh beginning. In Watson at 205, Kirby P noted that, " unless the 'review' persuades the Judge that the order being reviewed should be varied, discharged or otherwise disturbed, the order under 'review' will stand and be binding between the parties" . The way in which his Honour puts that remark is of some importance - he contemplates that it is going through the process of " review" that persuades the judge that the order being reviewed should be varied, discharged or otherwise altered; not that it is the finding of error in the original decision that justifies the variation of the original decision. In Sapina this Court noted that earlier decisions on the Compensation Court Act 1984 dealt with a statutory structure that was in different terms to the structure that now exists under the WIM Act . The Court held at [50] that the earlier decisions on the Compensation Court Act should be treated with caution. However, the Court also accepted that those decisions may "give real guidance as to the meaning of 'review'". 21In conducting a "review" under s 352 WIM Act it is not necessary for a Presidential member to find error in the decision of an arbitrator before setting it aside: Tan v National Australia Bank Ltd [2008] NSWCA 198 at [11]-[12] per Basten JA (Bell JA agreeing); Akora Holdings Pty Ltd v Ljubicic [2008] NSWCA 339 at [6] per Basten JA (Hodgson and Campbell JJA agreeing), and see generally the exhaustive review of the authorities in Sapina , esp at [23], [47]-[48], [52], [54]-[55]. However, deciding whether the decision of an Arbitrator was reached through error can sometimes be a legitimate part of the task of a Presidential member conducting a review, even though it is not the whole of the Presidential member's task: Sapina at [25], [57]; Cook v Midpart Pty Ltd [2008] NSWCA 151 at [10]. 22One specific consequence of this concerns the manner in which grounds of appeal are identified. In this Court, where the power to overturn a decision below depends upon finding error in the decision below, a properly formulated ground of appeal should identify one of the respects in which it is contended that the decision below was in error. The formulation of grounds of appeal in this Court may be compared to the procedure in the Commission. In the Commission, the parties must identify the arguments to be put in favour of review of the decision sought to be appealed against (see [93] below). Such an identification of the arguments to be put should identify why it is contended that the Presidential member deciding the appeal should, as a matter of substance, reach a different view to that of the Arbitrator. 23In Sapina at [57]-[58], Allsop P and Hoeben J (Beazley JA agreeing) summarised the principles applicable to a "review" under s 352 WIM Act as follows: "... 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 Watson , Boston Clothing , Litynski and AGL v Samuels made 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." (emphasis in original) 24In deciding whether it is appropriate to decide the matter himself or remit it, a Presidential member is not constrained by any requirement that he should remit the matter to the primary decision maker unless satisfied there could not be a different result: State Transit Authority of NSW v Chemler at [2], [30]. Appeal from a Presidential Member to the Court of Appeal 25The right of appeal from a decision of a Presidential member to the Court of Appeal, that the Force now seeks to exercise, is established by s 353 WIM Act : "(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. ... (4) The following appeals under this section may be made only with leave of the Court of Appeal: (a) an appeal from an interlocutory decision, ..." 26In the present case, leave to appeal is necessary because the Decision Below is interlocutory. The Deputy President's decision that the Arbitrator had denied the Respondent procedural fairness is clearly a "decision ... in point of law" , and so within the scope of the right of appeal to this Court. Likewise, the decision that inadequate reasons had been given is a "decision ... in point of law" . The Arbitrator's Decision 27Deciding whether the Deputy President erred in holding there was a denial of procedural fairness requires a fairly detailed consideration of the evidence before the Arbitrator, the way in which the hearing before the Arbitrator proceeded, and the Arbitrator's decision. The Evidence Before the Arbitrator 28In accordance with the usual procedure adopted in the Commission, much of the evidence before the Arbitrator was in writing and had been exchanged between the parties before the oral hearing began: Workers Compensation Commission Rules 2006 , clauses 10.3, 14.2. 29It was common ground that the Respondent did not come to work on 8 September 2008, and never returned to work after 8 September 2008. 30One item of evidence was a statement of the Respondent, made on 12 June 2009, which contains 51 pages of text. It gives a detailed account of his life, and of his career in the Force from the time he became a probationary constable on 27 April 1990. It relates numerous incidents in which he was involved throughout his career in the Force, that he found distressing. It also included details of some difficulties in personal relationships with certain other police officers. He had been particularly concerned about not being permitted to transfer from Gladesville police station, about being kept on patrol work there instead of being given work that in his view was more suitable for his skills, and about being exposed to danger because he was often accompanied on patrol work by junior or female officers who in his view were not able to deal with the demands of patrol work. His statement included the following: "114. On Monday 8 September 2008 I was rostered for a day shift but on waking I felt physically unwell. I had not slept the night before just mulling over the things that had been happening over the previous few weeks. I rang work and spoke to Sergeant Webber and told him that I would not be able to come in and I was going to see my doctor. I did not say to him that I was 'sick of it all' or 'that I had had enough'. I am quite sure I stipulated that I was suffering with anxiety and I was going to see my doctor. ... 115. I saw my GP, Dr Gordon and I explained to him what had been happening at work and described the symptoms I had been suffering. Dr Gordon does have a background in Psychiatry and after talking with me he provisionally diagnosed me as suffering with Post Traumatic Stress Disorder, which he believed was a result of cumulative incidents that had occurred during my policing career. 116. Dr Gordon initially certified me unfit for duties for two weeks but this was extended for a further two weeks. At the end of that month I still felt unwell and unable to return to work so he reviewed me on a monthly basis and also recommended that I go and see a practicing Psychiatrist and he referred me to Dr Zuessman. 117. Dr Zuessman confirmed Dr Gordon's diagnosis and we discussed the issues that had been affecting me. I resisted his suggestion to commence medication as I did not want to be on antidepressant therapy, certainly not at this stage. 118. About a week after being on sick report I contacted the Association and they told me about claiming workers' compensation. I contacted Dr Gordon and [he] provided me with a WorkCover Certificate so I could submit a workers' compensation claim." 31In April 2008 the Respondent had seen a Police Medical Officer, concerning whether he was fit to return to work after a period of sick leave. The Arbitrator had the report of the Medical Officer. In that report there was no mention by the Respondent of traumatic events that were the source of any particular disorder that the Respondent had. 32The Arbitrator had before her the notes of Dr P Richard Gordon, who had been the Respondent's general practitioner for many years. His notes included the following: Past Medical History:
Date Condition 3 March 2008 Certificate Supplied 11 March 2008 Certificate Supplied 2 April 2008 Certificate Supplied 8 September 2008 Seborrhoeic dermatitis 12 September 2008 PTSD (Post Traumatic Stress Disorder) 33The Past Medical History" recorded in Dr Gordon's notes listed a further seven occasions, over the period from 18 September 2008 to 14 January 2009, when he attributed to the Respondent a "condition" of PTSD. The format of Dr Gordon's note was such that the "condition" that he listed in the Past Medical History was always expressed in the same terms as the "reason for contact" in a more detailed note that he made relating to a particular attendance. 12 September 2008 is the first occasion on which Dr Gordon's notes contain any mention of PTSD. 34Dr Gordon's notes included entries concerning attendances by the Respondent commencing in November 2006, in which complaints were recorded about difficulties with work. Two particular entries in the notes are: " Monday September 8 2008 15:12:25 Dr P Richard Gordon Still not happy at work. Trying to get out of patrol work. Stress has lead to rash on body, feels is being badly treated. Needs cert stating too stressed to work. o/e rash over sternum and in both axillae. Looks like seb dermatitis or psoriasis, Rx Elocon. Reason for contact: Seborrhoeic dermatitis Actions: Letter Created - re CERTIFICATE. Prescription added: ELOCON CREAM 0.1% daily Prescriptions printed: ELOCON CREAM 0.1% daily Friday September 12 2008 16:43:52 Dr P Richard Gordon Has spoken to Union and they suggested he apply for PTSD from some of the episodes that have happened to him - violent episodes. Reason for contact: PTSD (Post Traumatic Stress Disorder) Actions: Letter Created - re NSW - WorkCover to W/C." 35The evidence before the Arbitrator also included the certificate that Dr Gordon issued on 8 September 2008. It certified that he "is suffering from work related stress and is unfit to work from 8/9/08 to 14/9/08 inclusive" . 36A certificate that Dr Gordon issued on 12 September 2008 specifically identified a diagnosis of PTSD. It identified how the injury occurred as being "assaulted by psychotic person" on 31 August 2008. 37On 15 September 2008 the Respondent lodged an Incident Notification Form with his superior officer. Though it took the form of a report by a police officer to his superior officer, it served the function of making a claim for benefits. It stated that he had incurred a psychological injury at a crime scene on 11 August 2008, and that similar injuries had occurred before. He identified the manner in which the injury occurred as being: "Whilst performing general duties, dealt with 5 persons (all separate incidents) in a calendar month who subjected me to a high degree of violence. All 5 persons were subject of the Mental Health Act ." 38The Incident Notification Form gave details of five separate incidents that had occurred in the period starting on 11 August 2008. The report concluded with a "recommendation" : "General duties policing has taken on a multitude of incidents related to persons suffering mental health issues. These incidents are dangerous to the staff involved and cause an amount of stress. Couple that stress with the fact that very junior police are assisting, the work is far from safe and requires a great amount of experience to keep all officers safe. This worry of not only keeping myself safe but my very junior officer safe as well has brought about an amount of post traumatic stress which is what I have been diagnosed with." 39On 19 September 2008 Dr Gordon referred the Respondent to Dr R Zuessman, a psychologist. Dr Gordon's letter of referral to Dr Zuessman relevantly stated: "Thank you for seeing Gregory Winter, age 42 yrs, who is suffering from stress related to his work as a policeman. He has documented the incidents which have lead to his situation along with the difficulties he has had with his superiors. I would appreciate your assessment and guidance. Past History: Date Condition 2 April 2008 Certificate Supplied 8 September 2008 Seborrhoeic dermatitis 12 September 2008 PTSD (Post Traumatic Stress Disorder)" 40Dr Zuessman saw the Respondent on several occasions in 2008. He gave a report on 30 July 2009. In it, he described the Respondent as: "... an individual experiencing personal distress in response to exposure to incidents at work." He expressed the view that the Respondent did not have all the symptoms identified in DSM-IV as required for a diagnosis of Post Traumatic Stress Disorder. However, in the opinion of Dr Zuessman he met the criteria for a diagnosis of Adjustment Disorder in DSM-IV. 41Dr Gordon provided a written report dated 12 August 2009 that included: "1. The history ... I had not seen Greg in the past few years until he attended on November 9, 2006 complaining of problems at work. These problems are set out in detail in his submission and briefly in my medical record. Greg described to me the difficulties he had with violent persons, some of whom were mentally disturbed, and the lack of support he felt was forthcoming from his junior partners and supervisors. He also described what he felt was a lack of respect for his abilities and obstruction to his advancement in the Force. Greg attended twice in November 2006 and then was not seen here again until 3 rd March 2008 when he again described problems at work. Since then he has attended on 27 occasions, all related to his work related stress and dissatisfaction, and the physical and emotional consequences. I have appended a full copy of my computerised records form [sic] November 2006 which cover the period of Greg's work problems. 2. Physical findings Greg has variously exhibited psoriatic skin changes and weight loss. Symptomatically there has been nervousness, irritability, loss of appetite and poor sleeping. 3. Diagnosis at initial consultation was of somatisation of work related stress. 4. The observable physical signs were skin rash and weight loss. 5. I felt that the cause of these conditions was stress." 42It concluded by saying: "I have read Dr Zuessman's excellent report and agree with his diagnosis, management and prognosis." 43Dr Christopher Canaris, a consultant psychiatrist, gave a report dated 23 November 2009. His conclusion included: "Your client's presentation is not straightforward. However, from his account, he certainly suffers from a psychiatric illness best classified as mixed anxiety depression, a condition not formally incorporated into the DSM-IV-TR, but one recognised by the ICD-10 classification used by the World Health Organization and the NSW Department of Health. I sometimes use this diagnosis to describe patients suffering from what I regard as a forme fruste of posttraumatic stress disorder in which not all the features of the condition are apparent. Nevertheless, he clearly has been exposed over the course of his career to his fair share of traumatic incidents and his growing sense of unease about working in general duties seems to me to be a form of phobic avoidance behaviour. I note Dr Zuessman made a diagnosis of adjustment disorder with mixed anxiety and depressed mood, which is fundamentally the same diagnosis." 44By a letter of 13 January 2010, Dr Canaris clarified this conclusion: "As regards my use of a non DSM-IV-TR diagnosis, I note that I am required to make diagnoses using a well-recognised psychiatric classification system. The DSM-IV-TR is one such system. The ICD-10 as explained in my report is an equally well-recognised diagnostic system. I did not want to make a diagnosis of an adjustment disorder simply because adjustment disorders generally dissipate within a few weeks or months (an arbitrary maximum of six months according to the DSM-IV-TR) of being removed from a given stressor. I note in this context his absence from work on sick report since September 2008. Consequently, I felt that the ICD-10 diagnosis of mixed anxiety depression better captured the enduring nature of his psychiatric injury." 45In a supplementary report dated 26 November 2009 Dr Canaris stated: "I confirm that I believe your client's employment with the NSW Police Force has been a substantial contributing factor to the development of his mixed anxiety depression." 46Ms Rachael O'Donnell, a consultant psychologist, prepared a report dated 9 October 2008 for the Force. It included the Respondent's account of the precipitating factors for his absence from work, and accounts from various of his work colleagues that made allegations about the Respondent having unsatisfactory work performance and personal difficulties with other officers. It included an account of an interview with Dr Gordon. It also included a report on the Respondent completing "the Personality Assessment Inventory (PAI), which is a broad test designed to assess several of the major patterns in personality and emotional responses." Ms O'Donnell reported: "The degree to which response styles may have affected or distorted the report of symptomatology on the inventory is also assessed. Certain of these indicators fall outside of the normal range, suggesting that Mr Winter may not have answered in a completely forthright manner; the nature of his responses might lead the evaluator to form a somewhat inaccurate impression of the client based upon the style of responding described below. Mr Winter's response patterns are unusual in that they indicate a defensiveness about particular personal shortcomings as well as an exaggeration of certain problems. The PAI clinical profile reveals no marked elevations that should be considered to indicate the presence of clinical psychopathology. Scores on one or more scales do, however, show moderate elevations that may reflect sources of difficulty for the person. Mr Winter describes himself as being more wary and sensitive in interpersonal relationships than the average adult. Others are likely to see him as tough-minded, sceptical, and somewhat hostile. Mr Winter reports some difficulties consistent with relatively mild or transient depressive symptomatology." 47She concluded, concerning the PAI test: "Overall, the results from the PAI are consistent with information from Mr Winter and workplace reports suggesting that Mr Winter's symptoms are of a sub clinical level." 48Overall, concerning his symptoms she concluded: "I am of the opinion that at the time Mr Winter lodged his claim on 11 August 2008 and at the present time, his symptoms were not and are not of adequate frequency and severity to warrant a clinical diagnosis as defined by the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition. Rather his signs and symptoms of distress are presenting at a sub-clinical level." The reference to 11 August 2008 was clearly a mistake. 49After examining various of the matters that had distressed the Respondent concerning his work environment, she concluded: "Based on the available evidence work is not a substantial contributing factor to Mr Winter's current sub-clinical levels of distress. Specifically, there is a lack of evidence to suggest that Mr Winter was subject to critical and traumatic incidents at work, or that he was not supported by management. Rather it would appear that Mr Winter's perception of this issue has been a highly negative and over-personalised reaction fuelled by his levels of vocational discontent." (emphasis in original) 50The Respondent's statement disputed the various allegations about his unsatisfactory work performance, and gave his own account of the alleged personal difficulties with other officers. 51In his report of 23 November 2009 Dr Canaris commented on Ms O'Donnell's report: "Reading Ms O'Donnell's account, I am surprised by her conclusion that your client suffers no psychiatric disorder given his sleep disturbance and weight loss both of which suggest he is suffering from something substantially more than mere 'normal' distress or unhappiness. Similar considerations apply to his skin problems - the skin often serves as a sensitive emotional barometer. I note Ms O'Donnell relies extensively on the Personality Assessment Inventory, an instrument which assesses personality style but which does not yield psychiatric diagnoses. She relies also on unfavourable reports from his superiors, which from your investigation appear open to challenge. Clearly, my role does not extend to reconciling the discrepancies in the various accounts of your client's performance." 52Dr Zuessman's report included what I would infer is a comment on Ms O'Donnell's report: "A diagnosis of a mental disorder can be made when the boundary between normality and pathology in an individual is crossed in part by virtue of a clinically significant behavioural or psychological syndrome or pattern associated with present distress, disability or dysfunction. Assessing whether the criterion of clinical significance is met is inherently difficult and reliant upon judgement of the clinician based upon the information available. There is no such mental disorder diagnostic nomenclature as 'sub-clinical'. However, such a phrase might be used to convey the presence of symptoms and signs that do not meet diagnostic criteria for a specific disorder. In medical parlance 'sub-clinical' refers to an early stage or partial form of a disease or syndrome, or one which stays below the surface of clinical detection." The Hearing Before the Arbitrator The Cross-Examination 53At the start of the hearing before the Arbitrator, Mr Stanton, counsel for the Force in the court below, made an application to cross-examine the Respondent: "... in respect of two areas, namely, injury and the section 11A(1) defence, and I make that application as ultimately I'm going to make submissions to you based on the documents before you, and, as a matter of fairness, in my submission, I should be permitted to ask the applicant questions that go to those two particular issues." 54Mr Morgan, counsel for the Respondent in the court below, opposed that application. After some further discussion, the transcript records: "MR STANTON: I'll make it clear as to why I want to ask questions, and that is one of the things that you as the Arbitrator need to do is make a determination as to whether you accept what Mr Winter says is truthful. Like any other jurisdiction, that is one of the jobs that the arbitrator or judicial person determining a matter needs to form a view about. And, with respect, in the absence of cross-examination, the submission that will no doubt be made by my friend is that he's not challenged about this so you should accept him. Now, in my submission, at the end of the day, this is a question that involves - sorry - this is a case that involves questions of credit, and it is for that reason that I make the application to cross-examine Mr Winter. ARBITRATOR: Would it be brief? MR STANTON: I propose to be brief. I don't propose to be lengthy about it. ARBITRATOR: Well, a few brief questions I'll allow on section 4 and 11A(3) but nothing on the other. I can't see that that's anything to do with the applicant." 55After the Respondent was sworn, Mr Stanton reminded the Respondent about his statement, and in particular paragraphs [114] and [115] (set out at [30] above). The questioning then continued: "Q. So Dr Gordon was the first doctor you saw after you ceased work on 8 September 2008. Correct? And when you say you explained to him what had been happening at work, by that you meant the matters that were affecting you at that time that caused you to stop work on 8 September 2008. Correct? A. I did explain that I was feeling stressed. Q. Yes, but when you say to him - explained to him what had been happening at work, you gave him some detail, did you not? A. I think I explained some examples to my doctor about what was causing me stress, yes. Q. What I want to suggest to you is that when you went and saw Dr Canaris you told him about traumatic events that had taken place over the years, understandably, working as a police officer. A. Yes. Q. And the reason you did that at that time is because, in your own mind, you thought they were the events that gave rise to the problems in September 2008 that took you off work. Correct? A. No, I don't agree with you, because I also spoke to Dr Canaris about those particular incidents that happened in September 2008 as well. Q. All right. Let me put this fairly to you, Mr Winter. The traumatic events of which you told Dr Canaris were not matters in your mind when you went to see Dr Gordon on the first occasion after 8 September 2008, were they? A. I'd never met Dr Canaris before. Q. No, no, sorry. A. So I had to give him -- ARBITRATOR: I don't think Mr Winter understands the question. MR STANTON: Yes, I know. I'll put it again. ARBITRATOR: Yes. MR STANTON: Q. What I'm suggesting to you, Mr Winter, is when you saw Dr Gordon for the first time after you stopped work on 8 September 2008 you did not tell him about -- MR MORGAN: He can't answer that - you can't ask that question. MR STANTON: Yes, I can. MR MORGAN: No, you can't. MR STANTON: Could I finish the question? MR MORGAN: No. You've gone far enough. ARBITRATOR: Why can't he answer that? MR MORGAN: Because the doctor has not recorded all the symptoms. The doctor has recorded a number of things. Now, for all Mr Stanton knows, Mr Winter may well have said these things to the doctor. Now, he can't state with any certainty -- ARBITRATOR: Are we talking about Dr Gordon? MR STANTON: Yes. We're talking about -- ARBITRATOR: We've got Dr Gordon's notes. MR STANTON: That's what I'm asking him about. ARBITRATOR: Well, we don't have to ask that. It's there. The notes are there. We know what - MR STANTON: Well, I'm content for that matter to speak for itself. ARBITRATOR: Yes. MR STANTON: Q. You see, what I want to suggest to you, Mr Winter, is the first time you spoke to Dr Gordon about matters relating to post-traumatic stress disorder was after you had spoken to your union. ARBITRATOR: But that's in the notes too. It says it in the doctor's notes. This is more for submissions than cross-examination. MR STANTON: Well, I'm content if that's the way you're going to approach the matter. I'm content with that. ARBITRATOR: I mean, I've read the material and you'll make submissions. I don't see that Mr Winter has to be put through cross-examination on it. MR STANTON: Just pardon me. I'll just see if there's any other issue that I wanted to raise." 56Mr Morgan did not withdraw his objection to the cross-examination on the topic of what the Respondent had told Dr Gordon on 8 September 2008, and no further questions were put by way of cross-examination. Mr Morgan stated his wish to elicit some supplementary evidence-in-chief on three different topics from the Respondent. However on being told by the Arbitrator that evidence on one of those topics was already in the documentary evidence, by Mr Stanton that there was no issue about the second topic, and by the Arbitrator that she was sure Mr Stanton would not object to submissions being made on the third topic, Mr Morgan did not persist. The Submissions 57In his submissions to the Arbitrator, Mr Stanton took the Arbitrator through the detail of Dr Gordon's notes. After arriving at the note that Dr Gordon made on 25 March 2008, Mr Stanton continued: "So just pausing there, again, still no reference to being exposed to traumatic events and that's the reason why I can't face general duties. No reference in any of the notes to any of the symptoms and signs indicating that he would have a PTSD condition or a depressive anxiety disorder at that time but every indication that he is [a] disgruntled employee who, when the department attempts to put him back into general duties, goes off sick." 58Mr Stanton recognised, in his submissions, that in the Respondent's statement prepared for the case, and in the Respondent's application for compensation benefits, the Respondent had asserted that in the month before he went off work he had been involved in five incidents with potentially dangerous people. However, Mr Stanton said: "... unless there be any doubt about it, I'm saying he's been dishonest at that time when he fills in the claim form." 59Mr Stanton's submissions included: "Then we get to the entry - the all-important entry, in my respectful submission, 8 September 2008. He goes to see Dr Gordon. What's he told? 'Still not happy at work. Trying to get out of patrol work. Stress has led to rash on body. Feels is being badly treated. Needs certificate stating too stressed to work.' There's a complete absence of any recording, to use a neutral phrase, of the history that Mr Winter provides Dr Canaris, a doctor who hadn't seen him before and wanted to know what his history was. Well, if, indeed, traumatic events were the cause, you would expect him to go and see Dr Gordon and tell him that, but this is more of the same, in my respectful submission. This is a man who is disgruntled about his employment and disgruntled about the fact that he hasn't been given the job that he thinks that he ought to be given, namely, in legal services or off to the Coroner's Court, as he referred to in April 2008. Now, what happens then is the development of the PTSD case, in my respectful submission, and it comes not from Mr Winter but from his union, and the most telling note about that is the note of 12 September 2008 in Dr Gordon's records. 'Has spoken to union and they suggested he apply for PTSD for some of the episodes that have happened to him - violent episodes.' The way it's recorded it's like news to Dr Gordon. And then the diagnosis recorded in the note is - or reason for contact, 'Post-traumatic stress disorder.' Then what happens is you have the claim form that was completed that you referred to earlier, but just before I leave that could I just take you to paragraph 115 of the statement .... And this is what I asked some brief questions about. 'I saw my GP, Dr Gordon, and I explained to him what had been happening at work and described the symptoms I had been suffering.' But what the doctor records he was told was that he was trying to get out of patrol work, he was not happy at work, the stress had led to the rash on the body, felt that he was being badly treated and wanted a certificate stating too stressed to work. That's what he told him not anything that Dr Canaris has recorded. He goes on to say, 'Dr Gordon does have a background in psychiatry, and after talking with me he provisionally diagnosed me as suffering from post-traumatic stress disorder, which he believed was a result of cumulative incidents that had occurred during my policing career.' Well, that was certainly not the doctor's opinion as at 8 September 2008, and the note on 12 September 2008 would seem to suggest that it was an opinion that was held by the union and planted in the doctor's mind in that circumstance." 60Mr Stanton then dealt with Dr Gordon's letter of referral to Dr Zuessman, dated 19 September 2008, and said: "... but what's important about the letter is what he says. Dr Gordon says, 'Thank you for seeing Gregory Winter, age 42 years. He is suffering from stress related to his work as a policeman. He has documented the incidents which have led to a situation, along with the difficulties he has had with his superiors. I appreciate your assistance and guidance.' It's not the opinion of a doctor, as the applicant would have you believe at paragraph 115. He'd [who'd?] already diagnosed post-traumatic stress disorder. Rather, it's the opinion of the doctor saying, look, he's got stress related to work; he's gone and prepared a document that talks about a number of incidents and also difficulties he has with his supervisors. It's a matter for Mr Zuessman to try and work out what it all means. The point I'm trying to make, and perhaps labouring, is that paragraph 115 of the statement is just disingenuous to suggest that it was something that came from Dr Gordon, that that was the diagnosis, because no doubt what will be suggested is he made that diagnosis; he must have made it because he was given a history of traumatic incidents." 61Mr Stanton summarised this portion of his submission by saying: "... you would not be satisfied that the very core, the relevant events that are referred to in the applicant's lengthy statement and the opinion of Dr Canaris, were indeed stressors that operated upon the applicant's psyche at the time that he ceased work on 8 September 2008, and therefore, in my respectful submission, you would not be satisfied that he suffered injury within the meaning of the legislation." At the time these submissions were made, the Respondent was still in the hearing room. Between the remark of Mr Stanton quoted at [58] above, and Mr Stanton's remark quoted at [59], the Respondent had answered some questions that the Arbitrator asked him. 62There was no application from Mr Morgan to recall the Respondent. 63In his submissions, Mr Morgan submitted that the Arbitrator should prefer Dr Zuessman and Dr Canaris to Ms O'Donnell. Mr Morgan said that Mr Stanton had: "... attacked the worker's credit. You've had the opportunity to observe the worker today, and I take you back, Arbitrator, to the comments I made earlier with respect to weight loss and the psoriatic condition. Now, this is a consistent presentation to Dr Gordon throughout." 64Mr Morgan noted: "My friend has made, in his submissions on issues going to causation, some considerable play on the notes of Dr Gordon." Mr Morgan's submission concerning that was that Mr Stanton had ignored Dr Gordon's report of 12 August 2009. 65Concerning Mr Stanton's submission that the possibility of the Respondent suffering from PTSD had originated from the union, Mr Morgan submitted: "Well, if a union official says, well, if you're not coping, go and see your doctor and you may be suffering from something. A brief note appearing in a doctor's record is not, in my submission, sufficient for you to be drawing conclusions, particularly in circumstances where you've got such a dramatic presentation of the worker as found by Dr Canaris and the psychologist, Mr Zuessman, that there could be any lack of bona fides on the worker's part in this regard or reported to the managers." 66There was no submission from Mr Morgan that it was procedurally not open to the Arbitrator to uphold the submissions of Mr Stanton that I have quoted. Rather, Mr Morgan dealt with their substance. The complaint of procedural unfairness was not made until after the Arbitrator had delivered her decision. The Arbitrator's Decision 67The Arbitrator summarised the medical evidence, and the evidence relating to the Respondent's difficulties at work. Of particular relevance for this appeal is that the Arbitrator said in her reasons, at [39]-[40]: "Dr Gordon diagnosed Post Traumatic Stress Syndrome in his patient. However from his notes it would appear that the diagnosis was first suggested to him after Mr Winter had consulted with his union .... There is no evidence from his notes that he discussed past traumas in Mr Winter's police experience with him until the reference to the union advice on 12/09/08 ... In his statement Mr Winter is less than frank about the timing of his diagnosis in relation to his obtaining advice from the association. He implies that the diagnosis by Dr Gordon came first. This is contradicted in the doctor's notes." 68One conclusion the Arbitrator reached was: "[48] Mr Winter is distressed and emotionally upset at his present situation however he does not show the disabling symptoms and signs and the impairment in social, occupational or other areas of function which are usually found in a person with a psychological injury. His dispute with his employer has not 'injured' Mr Winter so as to result in a compensable loss. I find that he has not suffered a psychological injury at or in the course of his employment as defined in section 4 and 11A(3) of the 1987 Act." 69She also found that there was "insufficient evidence that the Applicant has suffered an ongoing incapacity arising from any psychological injury he suffered at work on the 8/09/08." The Decision Below 70The Decision Below gave detailed consideration to the various statements that had been made by lay witnesses and expert medical witnesses. 71The Deputy President held that: "the Arbitrator denied Senior Constable Winter procedural fairness by making an adverse credit finding on an issue that he did not have a reasonable opportunity to answer because she prematurely terminated the cross-examination." [188] 72Though the Deputy President made it clear that he regarded the failure to accord procedural fairness as a sufficient reason for setting the decision aside, the Deputy President also held that the Arbitrator failed to give adequate reasons. At the time of the Arbitrator's Decision, the Workers Compensation Commission Rules 2006 applied. Rule 15.6 of those Rules said: "(1) A statement of the Commission's reasons referred to in section 294 (2) of the 1998 Act is to include: (a) the Commission's findings on material questions of fact, referring to the evidence or other material on which those findings were based, and (b) the Commission's understanding of the applicable law, and (c) the reasoning processes that lead the Commission to the conclusions it made. (2) Without limiting subrule (1), the reasons set out in a statement referred to in subrule (1) are to be stated sufficiently (in the opinion of the Commission) to make the parties aware of the Commission's view of the case made by each of them." 73The Deputy President's reasons included, at [182]-[185]: "The Arbitrator found that Senior Constable Winter had been 'less than frank about the timing of his diagnosis in relation to obtaining advice from the [Police] [A]ssociation' (Reasons at [40]). This was a reference to the worker's evidence (at [115] of his statement) that he saw Dr Gordon and 'explained what had been happening at work and described the symptoms I had been suffering'. The worker said that Dr Gordon made a provisional diagnosis of PTSD. Those statements were both accurate. However, the worker did not say in his statement when in September 2008 he first saw Dr Gordon or when the doctor first made the diagnosis of PTSD. It is not known if he had Dr Gordon's notes at the time he prepared his statement. If his statement was a reference to his attendance on Dr Gordon on 8 September 2008 (and though the statement did not give a date, the inference is that Senior Constable Winter was referring to his first attendance on Dr Gordon in September 2008, which was 8 September), it was inaccurate because Dr Gordon made no diagnosis of PTSD until the attendance on 12 September 2008, after the worker had spoken to the union. However, saying that a witness's statement may have been inaccurate is quite different to saying that he or she has been 'less than frank'. The Arbitrator's finding that Senior Constable Winter had been 'less than frank' suggested that she formed an adverse view of his credit on an issue where she had stopped cross-examination because Dr Gordon's notes were in evidence and it was, in her view, only a matter for submissions. However, Dr Gordon's notes did not fully answer the question of what complaints the worker made in his attendances prior to 12 September 2008. It is important to remember that clinical notes are rarely (if ever) a complete record of the exchange between a patient and a busy general practitioner. For this reason, they must be treated with some care ( Nominal Defendant v Clancy [2007] NSWCA 349 at [54]; Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]; King v Collins [2007] NSWCA 122 at [34]-[36]). In his report of 12 August 2009, Dr Gordon stated that Senior Constable Winter's problems were only 'briefly' set out in his medical records. That was a clear acknowledgment that his notes were (not surprisingly) not a complete record of the worker's complaints. He added that the worker had, among other things, described to him the difficulties he had with violent persons and the lack of support he felt from his junior partners and supervisors. It is unclear from the report (or the notes) exactly when Dr Gordon took that history. However, if it was to be suggested that Senior Constable Winter did not give that history (or a similar history of stress at work) to the doctor until after he saw the Police Association and that his statement was 'less than frank about the timing of his diagnosis in relation to his obtaining advice from the [Police] [A]ssociation', then, as a matter of procedural fairness, that assertion had to be put to him (either in cross-examination or in some other way) because it was not a matter that was obvious from the documentary evidence. It was merely one possible inference from a reading of the whole of page 37 of Senior Constable Winter's statement." 74The reasons that the Deputy Present gave for regarding the Arbitrator's reasons as inadequate included: "195. ... Whilst she referred to parts of the evidence, she failed to expose her reasoning on the critical issue of whether the worker had received an injury arising out of or in the course of his employment. It seems clear, as Mr Saul submitted, that the Arbitrator thought Senior Constable Winter was unreliable. However, she did not make a finding to that effect and, more importantly, did not indicate if she accepted or rejected the worker's evidence as to the effect the many work events and circumstances (the occurrence of which were not disputed) had on him. 196. ... the Arbitrator did not analyse the medical evidence and did not say if she rejected the strongly supportive evidence of Drs Canaris, Zuessman and Gordon, or if she accepted the contrary view expressed in Ms O'Donnell's evidence. The Arbitrator's reference (at [47]) to Dr Canaris stating that the worker was a 'round peg in a square hole' was of limited relevance to whether he had received an injury and did not indicate whether she accepted or rejected the doctor's evidence. ... 200. Though the Arbitrator acknowledged that Senior Constable Winter had a 'strong aversion to returning to work on the streets and also to returning to work at Gladesville' (at [44]), she failed to state if she accepted or rejected his evidence (supported by Drs Canaris and Zuessman) that that aversion was due to anxiety and fear for his safety that resulted from the circumstances of his employment ... 201. ... Drs Gordon, Canaris and Zuessman all considered the worker unfit for unrestricted policing work that is, that he was impaired in terms of his occupation. The arbitrator failed to adequately deal with that evidence." 75These are not the only inadequacies in the Arbitrator's reasons that the Deputy President identified, but they suffice for present purposes. 76The Deputy President's conclusion on the Arbitrator's reasons was, at [203]: "It follows that the Arbitrator failed to give adequate reasons for her conclusions. As I am not satisfied that only one conclusion is open, the decision must be revoked and the matter re-determined." Was There a Breach of Procedural Fairness? 77Section 354 WIM Act permits proceedings in the Workers Compensation Commission to be conducted with less formality and more truncated procedure than applies to litigation in a court. Nevertheless, an Arbitrator in the Workers Compensation Commission is subject to obligations of procedural fairness: State Transit Authority of New South Wales v Chemler at [65]; South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 at [91]; Fletcher International Exports Pty Ltd v Lott [2010] NSWCA 63 at [42], [63]; Duinker v St Vincent de Paul Society Aged and Special Services Ltd (Lewisham Nursing Home) [2008] NSWCA 127 at [33]. 78However, s 354 influences the content of the obligations of procedural fairness in the Commission. In Aluminium Louvres & Ceilings Pty Ltd v Zheng [2006] NSWCA 34 at [20] Bryson JA (Handley JA and Bell J agreeing) said: "... when a claim is made that natural justice has not been accorded, regard must be paid to the legal context in which the decision-maker operates and to the law regulating the conduct of the proceedings." To similar effect is South Western Sydney Area Health Service v Edmonds at [55] ff. 79In Aluminium Louvres Bryson JA noted, at [22], that s 354 WIM Act , and other provisions of the WIM Act , give the present Commission a wider range of discretionary choices about the procedure appropriate for a particular case than existed under the Workers Compensation Act 1926 . He said, at [25]: "The requirements of the rules for information to be lodged in advance and for statements revealing the cases of parties to be made in advance, taken with the width of the sources of information on which the Commission is authorised to act and the ways in which it is authorised to proceed, mean that assumptions upon which common law trials are conducted should not be readily carried over when testing contentions that a hearing before an Arbitrator was not conducted in a fair way." 80The particular matter that is contended to have given rise to a failure to accord procedural fairness in the present case is an alleged breach of the rule in Browne v Dunn (1893) 6 R 67. 81In West v Mead [2003] NSWSC 161; (2003) 13 BPR [24,431] at [95]-[99] I collected authorities about the manner in which the rule in Browne v Dunn was affected by exchange of documents between the parties before a hearing commenced: "In Browne v Dunn at 70-71 Lord Herschell LC stated an obligation of procedural fairness which counsel has when cross-examining a witness who counsel intends to submit should not be accepted: 'If you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity to make any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.' However, Lord Herschell LC said that there was no obligation to raise such a matter in cross-examination where it is: '... perfectly clear that [the witness] has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling ... All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted.' In Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1 Hunt J made a thorough review of later cases applying Browne v Dunn , and concluded (at 26): 'I remain of the opinion that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings.' ... Documents exchanged between the parties to litigation before the commencement of the trial are able to give notice that a witness's account of events will be challenged in particular ways, so that there is no breach of Browne v Dunn if the witness' account is not challenged in cross-examination. - Marelic v Comcare (1993) 121 ALR 114 at 120 (pre trial exchange of medical reports gives adequate notice), Flower & Hart v White Industries (QLD) Pty Ltd (1999) 163 ALR 744 at [52] (statement of issues, stated case and service of documentary evidence can give adequate notice), Stern v National Australia Bank Limited (2000) 171 ALR 192 at [44] (adequate notice given by pleadings), Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 at 236 per Mahoney JA (adequate notice given by "the nature of the defendant's case and the particulars given, and otherwise the conduct of it" ), In the Marriage of L C & T C (1998) 23 FamLR 75 at [39] (affidavits give adequate notice). Cross On Evidence , 6 th Australian edition, paragraph [17460] footnote 12 says: '... the rule in Browne v Dunn did not apply where all parties were on notice of the evidentiary issues, eg by reason of affidavits having been exchanged ...' The consequence of these decisions is that the circumstances in which Browne v Dunn will require matter to be put to a witness in cross-examination will depend upon the nature of the pre-trial preparation there has been, and whether that pre-trial preparation has been sufficient to give notice to a witness of the submission ultimately intended to be put to the court. An aspect of this is that Browne v Dunn will require more extensive cross-examination in a case where all the evidence is given orally, than is necessary in a case where the substance of the evidence proposed to be given by each side is notified in advance by affidavit or statement. Even when there has been an exchange of affidavits or statements, the rule in Browne v Dunn will require a cross-examining counsel to put to a witness the implications which counsel proposes to submit can be drawn from the evidence, if those implications are not obvious from the evidence, or from other pre-trial procedures, or the course of the case. ..." 82In the present case the exchange of documents between the parties prior to the oral hearing would be sufficient to have notified the Respondent that there was a live dispute about whether he suffered from a mental condition of sufficient seriousness to warrant classification as a "psychological injury" . It would have been sufficient to notify him that there was a live issue about whether the reason for his absence from work since 8 September 2008 was a psychological injury, rather than that he had undergone difficulties at work that he found disagreeable, even intolerable, but that had not precipitated a psychological injury. It would also have been sufficient to notify him that there was a live dispute about whether he was suffering any ongoing incapacity. 83However, the exchange of documentation before the hearing would not have been sufficient to inform the Respondent that a submission was to be made that as at 8 September 2008 no diagnosis of PTSD had been made, that the theory that he was suffering from PTSD had its origins in his union, or that his statement incorrectly created the impression that Dr Gordon had diagnosed him with PTSD on 8 September 2008. Notwithstanding that, at the hearing Mr Stanton made clear, in his oral submissions, that he proposed to make submissions attacking the Respondent's credit, and the general area in which that attack was proposed to be made. Mr Stanton was in the process of giving the Respondent the opportunity to explain the matters concerning which Mr Stanton had flagged his intention to make submission when Mr Morgan objected. It was the objection from Mr Morgan that provided the substantial reason why the Respondent did not give his account of the complaints he had made to Dr Gordon on 8 September 2008, of when and from what source the notion of him suffering from PTSD arose, and of why paras [114] and [115] of his statement were couched in the particular terms they were. The Arbitrator did not expressly rule on Mr Morgan's objection. Nevertheless, it is clear from the transcript (reproduced above at [55]) that the objection formed the principal reason for the Arbitrator indicating her dissatisfaction with the cross-examination proceeding, and for Mr Stanton's acquiescence in it not proceeding. 84The obligation to accord procedural fairness requires that a party be given notice of the case that is put against him or her, and a reasonable opportunity to put evidence and submissions before a tribunal concerning that case: Aluminium Louvres at [18]; State Transit Authority of New South Wales v Chemler at [65]; Parker v Comptroller-General of Customs [2009] HCA 7; (2009) 252 ALR 619 at [85] per French CJ, [137] per Gummow, Hayne and Kiefel JJ; Fletcher International Exports Pty Ltd v Lott at [42], [63]. In the present case, that obligation was satisfied. The Respondent had the opportunity, until his counsel took an objection, of giving his account concerning the matters on which Mr Stanton's submissions ultimately succeeded. Further, no attempt was made to recall the Respondent to give evidence on those topics. When it was the Respondent's counsel who took objection to the question being opened up, the present case is quite different to what it would have been if the Arbitrator, unprompted, had refused to permit Mr Stanton to explore the topics he wished to raise. 85Further, whether a litigant, who contends that there has been a breach of procedural fairness, was represented by counsel can be relevant to an assessment of whether there has been a breach of procedural fairness: 3D Scaffolding Pty Ltd v Commissioner of Taxation [2009] FCAFC 75 at [25] per Emmett, Kenny and McKerracher JJ. There may well have been sound tactical reasons for Mr Morgan taking the objection - he may well have taken the view that the weight of expert evidence favoured the Respondent, and that the Respondent would be better off having the matter determined on the papers without cross examination. Nevertheless, it was Mr Morgan's objection that provides the substantial reason why the Respondent did not give his account of the matters that the Deputy President held gave rise to a denial of procedural fairness. 86The Deputy President was therefore in error in holding that there had been a denial of procedural fairness. The Arbitrator's Reasons 87As noted at [6] above, the second and final ground of appeal pressed on the hearing before the Deputy President was that "the Arbitrator failed to give adequate reasons" . 88As explained at [19]-[ 24 ] above, the task of a Presidential member in conducting a review is to decide whether the Arbitrator has reached the correct view of the question that has been decided by the Arbitrator; and, if the Presidential member comes to a different view to that of the Arbitrator, to resolve the question in the way that the Presidential member decides is correct. While the Presidential member has a power to remit, that power should be exercised bearing in mind the importance of the parties having available to them the skill and judgment of the Presidential member: Sapina at [57]. 89As Basten JA has pointed out in 260 Oxford St Pty Ltd v Premetis [2006] NSWCA 96 at [118]-[119] and in Shellharbour City Council v Rigby [2006] NSWCA 308 at [311]-[316] "inadequacy of reasons" acquired its recognition as a ground of appeal in cases where the right of appeal was limited to an error of law. The start of its rise in New South Wales was Pettitt v Dunkley [1971] 1 NSWLR 376, in which an absence of reasons for the trial judge's verdict made it impossible to tell whether there had been an error of law, other than the failure to give reasons itself. Like procedural fairness, an allegation of "inadequacy of reasons" identifies a decision as flawed because it has been arrived at without observing the legal requirements governing the manner in which a decision is arrived at, not because the decision is in substance wrong. 90Where the task of an appellate tribunal is to decide whether the primary decision-maker has given the right answer concerning the matter that was the subject of the decision appealed from, for the appellate tribunal to ask whether the primary decision maker has given adequate reasons does not in itself carry out the appellate tribunal's task: cf Shellharbour City Council at [311]-[316] per Basten JA (with whom Ipp JA agreed). Deciding whether the primary decision-maker has given adequate reasons might sometimes be a relevant task. For example, if the decision appealed from is the result of poor or inadequate reasoning the appellate tribunal might be more ready to conclude that the primary decision-maker has not come to the true and correct view than if the decision appealed from had been fully and carefully reasoned. However, a court deciding an appeal by way of rehearing, and also (relevantly here) a Presidential member of the Commission conducting a " review " of the decision of an Arbitrator, can substitute their own decision even if the decision appealed from has been fully and carefully reasoned: cf Shellharbour City Council at [310]. A decision by a Presidential member of the Commission that an Arbitrator has not given adequate reasons is not sufficient to justify the Presidential member revoking or altering the decision of an Arbitrator unless the Presidential member also decides that the decision of the Arbitrator is not the true and correct decision. 91There may be some cases in which a Presidential member is satisfied that the decision of the Arbitrator is not the true and correct decision because the process of review has persuaded the Presidential member that some different decision is true and correct. In that case, the Presidential member would substitute his or her own view. There might be some cases in which a Presidential member is unable, on the material that was before the Arbitrator, to come to a view about precisely what is the true and correct decision, but is in a position to decide that the decision of the Arbitrator is not the true and correct one. In that case, the Presidential member might decide to permit the calling of further evidence before him or her, or might decide to remit the matter. However, finding that the decision of the Arbitrator is not a true and correct decision requires the Presidential member to consider the substance of the decision, not merely the procedure by which it has been arrived at. 92The appeal to the Presidential member under s 352 is constrained by the requirements of the Rules. Section 352(1A) provides: "An appeal is to be made by application to the Registrar. The appeal is not to proceed unless the Registrar is satisfied that the requirements of this section and any applicable Rules and regulations as to the making of the appeal have been complied with." 93The application to appeal against the decision of the arbitrator was filed on 16 June 2010. At that date the Workers Compensation Commission Rules 2006 were operative. Rule 16.2(1) required a party applying for leave to appeal under s 352 to lodge an application. Rule 16.2(4) provided: "An application referred to in subrule (1) must have attached to it a copy of the certificate as to the determination of the dispute referred to in subrule (2), and must include, or have attached, full details of: (a) the arguments to be put in favour of review of the decision sought to be appealed against, and (b) for the purposes of section 352(2) of the 1998 Act, the amount of compensation alleged to be at issue on the appeal, and (c) any new evidence in respect of which leave is to be sought, by the party lodging the application, in accordance with section 352(6) of the 1998 Act, and (d) if the party lodging the application wishes to object to the matter of leave to make the appeal, or the appeal, being decided solely on the basis of the written application and any written notice of opposition lodged, the reasons for the objection." (emphasis added) 94Procedural fairness would require that the scope of arguments advanced and decided in the course of an appeal from an Arbitrator were in substance no wider than those that had been notified under the rule 16.2(4)(a), or by some subsequent communication between the parties that the Presidential member regarded as providing adequate notification. The notification of arguments under rule 16.2(4)(a), or by some other process that the President member permits, fills an analogous function in the Commission to the identification of grounds in this Court. 95In the present case, the arguments pressed before the Presidential member were only breach of procedural fairness, and inadequacy of reasons. In circumstances where (as I have held) the allegation that there was a failure to accord procedural fairness should have failed, the argument concerning inadequacy of reasons was insufficient, by itself, to warrant a conclusion that the decision of the Arbitrator was not the true and correct decision. If there had been some additional ground of appeal, relating to the substance of the Arbitrator's decision, that the Deputy President upheld and on the basis of which he concluded that the Arbitrator's decision was not the true and correct decision, it might have been open to him to remit the matter. But without such an additional ground, inadequacy of reasons did not suffice. Draft Appeal Grounds 2 and 4 96The second appeal ground that the Force raises before this Court ([8] above) is raised only as a fallback position. It is that even if this Court accepted the Deputy President's view that the Respondent was not given an opportunity to produce evidence or make submissions about the adverse credit issue, the Deputy President was wrong in holding that this in any way affected the result. The Force's submission is that the Arbitrator's comment that the Respondent was "less than frank" was part of an extended discussion of the medical evidence, that the documentary records were of far greater weight than anything the Respondent said, and so in those circumstances the comment about the Respondent's want of frankness had no impact on the Arbitrator's decision. 97A right of appeal that is conferred by language like that in s 353(1) WIM Act extends to a situation where a matter of law had to be decided in order to dispose of the proceedings, whether or not it was expressly referred to in the decision: Kalokerinos v HIA Insurance Services Pty Ltd [2004] NSWCA 312 at [47]; Bahadori v Permanent Mortgages Pty Ltd [2008] NSWCA 150; (2008) 72 NSWLR 44 at [18], [24]-[25]. There is room for argument about whether the Deputy President made a " decision ... in point of law " to the effect that imperfect frankness on the part of the Respondent was relevant to whether the Respondent's claim should be dismissed. However, it is undesirable to seek to resolve that question in the present case, particularly when, in light of my decision about there being no denial of procedural fairness, the circumstances in which ground 2 would have work to do, do not arise. Similarly, it is unnecessary, in light of the conclusions already reached, to resolve ground 4. Orders 98I propose the following orders: (1) Grant leave to appeal. (2) Appeal upheld. (3) Set aside the orders made in the Workers Compensation Commission on 16 November 2010, and in lieu thereof, order that the appeal to the Commission constituted by a Presidential member be dismissed and the decision of the Arbitrator confirmed. (4) Order Respondent to pay the Appellant's costs of the appeal, but the Respondent to have a certificate under the Suitors' Fund Act 1951 . 99HANDLEY AJA : I agree with Campbell JA.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 October 2011
New South Wales Police Force
Winter
(1993) 9 NSWCCR 616
(2008) 72 NSWLR 44
(1994) 10 NSWCCR 287
(2009) 252 ALR 619
(1992) 8 NSWCCR 190
(1993) 121 ALR 114
(1999) 163 ALR 744
(2000) 171 ALR 192
(1977) 19 NSWLR 219
(1998) 23 FamLR 75
[2009] HCA 7