Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 (2 March 2006)

CITATION: ALUMINIUM LOUVRES & CEILINGS PTY LIMITED v XUE QIN ZHENG [2006] NSWCA 34

FILE NUMBER(S):

40796/2004

HEARING DATE(S): 10 November 2005

DECISION DATE: 02/03/2006

PARTIES:

Appellant – Aluminium Louvres & Ceiling Pty Limited

Respondent – Xue Qin Zheng

JUDGMENT OF: Handley JA Bryson JA Bell J

LOWER COURT JURISDICTION: Workers Compensation Court

LOWER COURT FILE NUMBER(S): WCC5911-2003

LOWER COURT JUDICIAL OFFICER: Dr Gabriel Fleming

COUNSEL:

Appellant – R.I. Harrington

Respondent – D.T. Kennedy SC / D. Burwood

SOLICITORS:

Appellant – Leigh Virtue & Associates

Respondent – Sankosan Lawyers

CATCHWORDS:

WORKERS COMPENSATION - Proceedings for compensation - determination of claims - hearing by Commission - cross-examination - Arbitrator limited cross-examination of applicant worker and refused to allow further questions after 35 minutes - on review, Deputy President held that there was no denial of procedural fairness - on appeal, held that the Deputy President was not in error of law - consideration of practice of Commission.

LEGISLATION CITED:

Workers Compensation Act 1926 s.36(3)

Workers Compensation Act 1987 ss. 4, 9A,14 and 60

Workers Compensation Commission Rules 2003 rules 37, 38 and 42

Workplace Injury Management and Workers Compensation Act 1998 ss. 3, 352, 353, 354, 355, 356, 357, 358, 359 and 367

DECISION:

Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40796/2004

HANDLEY JA

BRYSON JA

BELL J

2 March 2006

ALUMINIUM LOUVRES & CEILINGS PTY LIMITED v XUE QIN ZHENG

Judgment

1 HANDLEY JA: I agree with Bryson JA.

2 BRYSON JA: This is an appeal by leave from the decision of 17 May 2004 of Dr Gabriel Fleming, a Deputy President of the Workers Compensation Commission, on an appeal from the decision of Robin Gurr, Arbitrator, of 12 September 2003. The amount involved in the proceedings is quite small, in the order of $5,000. The appeal opens consideration of the Arbitrator's ruling limiting cross-examination and of the practice of the Workers Compensation Commission on restricting cross-examination, which has importance beyond its impact on the parties. The claim of the worker Mr Zheng followed an injury which, as has been determined, occurred on 8 October 2002 when he was physically attacked by another employee at the workplace, the employer’s factory at Bentley Street, Wetherill Park. There are significant differences among the accounts of the event given by three different persons.

3 Findings by the Arbitrator show to the effect (Red 45) that the worker Mr Zheng arrived at work about 6:50 a.m. on Tuesday 8 October 2002 (after a long weekend); 7 a.m. was the ordinary hour to commence work. Mr Zheng said and the Arbitrator accepted that when he arrived at work he turned on the compressor located just outside the factory and walked through the open roller door of the factory. He was approached by a Vietnamese employee, Mr Ngoan Van Bui. Mr Bui was known as number 24; because of language difficulties workers at the factory were usually addressed by numbers and Mr Zheng gave evidence that he did not know Mr Bui’s name. Mr Zheng also said that Mr Bui spoke neither English nor Mandarin. Mr Zheng was an immigrant from China and Mandarin was his native language. Mr Bui approached Mr Zheng with a piece of aluminium egg crate in his hand. Mr Zheng says that Mr Bui hit him over the head five or six times (and there were several different accounts of how many times) with the piece of egg crate causing some abrasions to his head and face.

4 Mr Zheng's account of the event was before the Arbitrator in several forms. As well as a document dated 11 October 2002 which cannot be identified but was probably a claim form, the Arbitrator saw a statement dated 1 November 2002 taken from Mr Zheng by Mr McKenzie, who appears to have been an investigator on behalf of the employer's insurer. There were several forms of this statement before the Arbitrator one of which was signed; they do not differ in any material way. There was also a letter dated 14 October 2002 from Mr Zheng to Mr Cooke, an officer of the employer. Mr Zheng gave oral evidence and was cross-examined. The best information available is that he was cross-examined for 35 minutes, after which the Arbitrator declined to allow cross-examination to continue.

5 Mr Bui’s account of events was before the Arbitrator in the form of his statement of 31 October 2002. Mr Bui did not attend the arbitration hearing and did not give any oral evidence. Mr Bui says that he spoke to Mr Zheng and asked if he could take the piece of egg crate home. Mr Zheng did not reply, simply looked at him and after a few seconds spat in his face. Mr Bui said “... I instinctively raised my hand and struck Zheng with the piece of aluminium grate in the head ... Zheng swung his bag at me, so I again struck him with the piece of grate to defend myself."

6 There was also before the Arbitrator a statement of another worker Mr Van Tuyet Pham of 31 October 2002. Mr Pham did not give evidence at the arbitration; the unfortunate fact is that he died on the morning of the hearing day of the arbitration. Mr Pham did not have a clear view of the event. He gave an account in which Mr Bui did not strike Mr Zheng but threw the piece of egg crate at him. Mr Zheng had worked at the factory for some years and had a position sometimes spoken of as leading hand, sometimes as supervisor. Mr Pham said that he was a standover man who intimidated other workers, but it seems that the Arbitrator did not accept this. The Arbitrator said to the effect that she preferred Mr Bui's statement to that of Mr Pham; (Red 45 [40]) she did not say that she preferred Mr Bui’s statement to that of Mr Zheng.

7 Mr Zheng went off work on and after 8 October 2002, and did not resume work for a long time (if he has ever resumed work). He notified the employer of his injury on 8 October 2002, and on 14 October 2002 he lodged a claim with CGU Workers Insurance, the insurer, for weekly benefits and medical expenses. On 8 November 2002 the insurer advised Mr Zheng that it denied liability for the claim on the basis that work was not a contributing factor to the injury and the incident did not arise in the course of employment. On 12 November 2002 the employer forwarded to Mr Zheng invoices for medical treatment totalling $160.90 which were said to have been incurred on Mr Zheng's behalf.

8 Mr Zheng lodged an application to resolve the dispute in the Workers Compensation Commission on 16 January 2003. In the employer’s Reply dated 17 February 2003 the employer’s solicitor, instructed by the insurer, was called on by the terms of the form to answer this question: “3. List the issues which remain in dispute. a] Factual b] Medical c] Legal." The form allowed 15 lines for the list, but the answer given was "All issues remain in dispute" and an accompanying statement of the evidence in which the respondent proposed to rely indicated that all material was yet to be obtained. What the Arbitrator understood to be in issue appears at paragraph 8 of her Statement of Reasons (Red 34).

ISSUES IN DISPUTE

8. The issues in dispute in this application may be summarised as follows:

· Did the Applicant receive an injury arising out of or in the course of employment? (WCA s 4)

· Was the Applicant's employment a substantial contributing factor to his injury? (WCA s 9A)

· Was the Applicant totally or partially incapacitated for work as a result of his injuries? (WCA s 33)

· For what period was the Applicant totally incapacitated? (WCA ss 36 and 37)

9 Before the Court of Appeal the employer’s counsel said that serious and wilful misconduct under s.14 of the Workers Compensation Act 1987 (“WCA”) was also in issue.

10 Unless Mr Zheng's account of the event was completely disbelieved, the conclusion that his injury arose out of or in the course of his employment appears to be inevitable, bearing in mind that according to Mr Zheng's statement he arrived at the place of work before the ordinary starting hour but that he had turned on the compressor outside the factory and was walking into the factory when Mr Bui approached him. Other information shows that there were (at least) several employees already present. Mr Bui said in his statement that he had commenced to work in the factory and that there were about 10 or 12 people already in the factory. He also said that when he had been in the factory for about 5 or 10 minutes he found a small section of damaged aluminium crate, that he wanted to use it at home, that he considered Mr Zheng a team leader of the factory and that he thought he should first ask Mr Zheng whether he could take it. Mr Zheng stated that he had already performed a work task in that he had turned on the compressor, while Mr Bui’s statement would show that he wanted to approach Mr Zheng about the employer's business, that is whether a piece of the employer's property could be removed, and that he approached Mr Zheng because he saw Mr Zheng as a team leader; and that Mr Bui had already started his work. The fact, which seems undoubted, that the injury happened before the ordinary starting time has only the most nominal part in the question whether the injury arose out of or in the course of the employment, and could not reasonably be seen as a demonstration that the injury was not one arising out of or in the course of Mr Zheng's employment.

11 There is a large qualification to my last paragraph. Mr Bui’s statement that Mr Zheng spat in his face did, as the employer's counsel contended (I would think correctly), raise for consideration whether Mr Zheng's conduct had taken him out of the course of his employment; but otherwise there is nothing in the circumstances which could leave anything reasonably open to consideration under s.4. The issue whether the worker's employment was a substantial contributing factor to his injury (s9A) raises similar considerations; unless Mr Zheng removed himself from the course of his employment by spitting in Mr Bui’s face or by some such conduct, there can not have been any real room for debate about the application of s.9A.

12 The Arbitrator decided – Red 46 [42] – that the injury arose out of or in the course of employment. The Arbitrator further said:

44. There is no clear evidence, therefore, that Mr Zheng said anything to provoke the physical attack which took place. According to Mr Bui’s own evidence, he approached Mr Zheng as his supervisor. I am unable to conclude that Mr Zheng engaged in any activity which was unauthorised or would constitute gross misconduct.

45. There is no evidence that the assault arose from anything other than the work relationship...

46. Mr Zheng’s conduct nor any other matter disentitles him to claim his work as a ”significant contributing factor” to his injury. He appears to have done nothing more than defend himself from attack. ...

13 There was a considerable body of information before the Arbitrator about Mr Zheng's incapacity, and the employer achieved success on that subject, because Mr Zheng’s claims for weekly benefit from 8 October 2002 which is the date of the injury continuing to the time of the hearing in September 2003 and medical expenses were not upheld, and he was awarded weekly benefits only until 2 December 2002 together with undefined expenses under s.60 of the WCA which it would seem are the expenses totalling $160.90 earlier referred to. The employer did not interpret this as the signal success it was, and appealed by leave to the Deputy President.

14 Appeals against decisions of the Commission constituted by an Arbitrator are regulated by s.352 of the Workplace Injury Management and Workers Compensation Act 1998 (“WIMWCA”). I set out subsections (5) and (6).

352 Appeal against decision of Commission constituted by Arbitrator

(5) An appeal under this section is to be by way of review of the decision appealed against.

(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.

15 Appeal from a Presidential member to the Court of Appeal lies under s.353 of the WIMWCA, and I set out subsections (1) and (2).

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.

(2) The Court of Appeal may, on the hearing of any appeal under this section, remit the matter to the Commission constituted by a Presidential member for determination by the Commission in accordance with any decision of the Court and may make such other order in relation to the appeal as the Court thinks fit.

16 The complaint in the Court of Appeal against the decision of the Deputy President is that the Deputy President did not but should have remitted the proceedings to the Arbitrator with a direction that the evidence of Mr Zheng should be taken without the limits on cross-examination which the Arbitrator imposed. It was open to the employer to seek leave of the Deputy President to adduce further evidence from Mr Zheng on the appeal, but no such application was made to the Deputy President. It was contended that the appellant had not been accorded Natural Justice because cross-examination of Mr Zheng had been limited, so that the solicitor representing the employer had not been in a position to deal fully with Mr Zheng’s statements. Mr Zheng was in a position to give evidence relevant to whether his injury arose out of or in the course of the employment, including evidence bearing on the time of the event, what Mr Zheng had done and what had otherwise happened up till then to connect the event with the employment and the course of the employment, and whether Mr Zheng had done anything to take himself out of the course of employment, particularly whether he had spat in Mr Bui’s face as Mr Bui’s statement contended. Cross-examination would give an opportunity to explore what Mr Zheng said had happened, to confront him with any internal anomalies and with asserted states of fact which differed from what he said, and to establish factual anomalies which had a bearing on his credit. In a similar way cross-examination could deal with whether the employment was a contributing factor, and a substantial contributing factor, to the injury (s.9A), with whether there was misconduct (s.14), with circumstances which might show that any misconduct was serious and wilful, and with the relation of misconduct with causation of the injury. There was also room for cross-examination and challenge on issues relating to his claimed incapacity.

17 Counsel complained that the employer was never allowed to put its factual basis forward, and gave these as subjects with which further cross-examination of Mr Zheng could have dealt:

(i) prior to actually starting work Mr Zheng spat in another employee's face unprovoked, and it was said that Mr Zheng could not be in the course of his employment and that the injury did not arise out of the employment;

(ii) the real cause of the injury was that Mr Zheng spat in Mr Bui's face and it should be concluded that the employment was not a substantial contributing factor to the injury;

(iii) there was serious and wilful misconduct.

18 Counsel for the appellants submitted that the right to cross-examine is not an arcane legal principle, and referred to a number of authorities in which cross-examination in administrative tribunals has been dealt with. Counsel referred to observations of Evatt J. in R v. War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 256, 257. Evatt J. stated, in a clear way, his view on the observance of the rules of evidence as a method of inquiry best calculated to prevent error and elicit truth. On the facts of Bott’s case the Appeal Tribunal departed in several ways from the manner in which proceedings are conducted at common law, and not allowing cross-examination was one of them. In the majority view the Tribunal had not departed from the real performance of its duty and its decision was not subject to mandamus. Starke J, who was in the majority, said to the effect that the Appeal Tribunal did not violate any substantial requirement of justice (249), “... Whether the cross-examination shall take place upon that opinion is entirely a question for the discretion of the Tribunal ...” (250) and “The Repatriation Commission and the Appeal Tribunal gave him a full and fair opportunity of presenting his case, in a full and fair hearing.” (247-248). In my opinion Bott’s case shows that there may well be circumstances in which a fair hearing takes place although cross-examination is not allowed.

19 Counsel also referred to observations of Hunt J. in Allied Pastoral Holdings Pty Ltd v. Federal Commissioner of Taxation [1983] 1 NSWLR 1 at 17 and 22, to A & B v. Director of Family Services [1996] ACTSC 48 [paras 26-37] Higgins J. and to Stead v. State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141.

20 In trial practice under the common law cross-examination has high importance, expectations about the presentation of factual issues for decision and about the conduct of advocates are closely related to the manner in which cross-examination is conducted and, while a court has discretionary power to control or limit cross-examination, those controls are used in a restrained manner. The practices of common law courts are not the only way in which fair procedures may lead to a just determination of facts which are in dispute. As ever 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.

21 Proceedings before the Commission are dealt with in Chapter 7 of the WIMWCA and s.354 is as follows:

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.

(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.

(8) In proceedings before a court with respect to a claim for work injury damages (other than proceedings under section 235A or 235C or under the Crimes Act 1900 with respect to fraud), evidence of a statement made in proceedings before the Commission is not admissible unless the person who made the statement agrees to the evidence being admitted.

22 Section 354(3) has a general but not exact resemblance to s.36(3) of the Workers Compensation Act 1926, which referred to the real merits and justice of the case. Section 36(3) appears to have had little influence on the procedure followed by the courts which heard proceedings under that Act; see Deigman v. State Coal Mines [1956] 30 WCR (NSW) 169 (Judge Rainbow) at 177 and 178. Section 354 and other provisions give the present Commission a wider range of discretionary choices about the procedure appropriate for a particular case than existed under earlier legislation.

23 The Arbitrator is to attempt conciliation (s.355). The Commission may require attendance at a conference in connection with proceedings (s.359); this furnishes an occasion for carrying out the duty in s.355 to attempt conciliation. The Commission may control representation of a party by a legal practitioner or an agent in some circumstances (s.356). The Commission may require persons including parties to furnish information (s.357) and may provide documents and information to parties (s.358).

24 In the Workers Compensation Commission Rules 2003 made under the WIMWCA the principal means of approaching the Commission is an application to resolve the dispute (Rule 37). The parties are required, within limited times, to lodge and serve all the information and documents on which they propose to rely and to make statements revealing the specific nature of their evidence and other material related to producing it (Rules 38 and 42).

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. The overall and continuing duty under s.355 to use best endeavours to bring the parties to settlement acceptable to all of them must have large influence on the manner in which proceedings are conducted. The environment of contestation and the confrontational methods of the common-law trial would not usually be appropriate; there may be issues of kinds which it is appropriate to deal with in that style, and much is left to the discretion of the Arbitrator. The Arbitrator is in a good position to decide on and to impose appropriate controls on the adduction of evidence, by cross-examination or otherwise. The Arbitrator will usually be in a position to perceive whether a wish to pursue an issue has a basis, whether it is a sound basis, whether some issue or line of questions is merely exploratory, or for that matter whether questions are merely the product of inventiveness.

26 In the present case the Arbitrator was in possession of the material lodged in advance of the hearing by the parties, and was entitled to act on the material. This put her in a good position to make a judgment about whether treatment or further treatment of any issue or line of inquiry in cross-examination was appropriately to be allowed or to be restricted.

27 The principal burden of the matter complained of, and the principal subject of the ruling limiting cross-examination was exploration of the time of the confrontation in which the worker was injured. On any view, this cannot have been an important matter and I find it understandable that the Arbitrator regarded it as appropriate to limit questioning and the adduction of evidence. All the information lodged by the parties suggested that the event happened before the ordinary starting time, Mr Zheng’s statement was to the effect that he had arrived at work, started the compressor and was entering the factory where a number of other employees already were, and Mr Bui’s statement was to the effect that he approached Mr Zheng on a subject relating to the employer's interests and property and chose to approach Mr Zheng because he had some apparent authority. Except in the respect that it could be contended that Mr Zheng took himself out of a course of his employment by spitting on Mr Bui there really was nothing of sufficient apparent substance to justify disputing that the injury arose out of or in the course of employment. In particular the time of the event was not of any importance, and nothing of any real value can have been lost by restricting the opportunity to cross-examine on that subject. The information narrated by the appellant’s solicitor was to the effect that the restriction was imposed after he had cross-examined Mr Zheng for about 35 minutes. It must be said that in my view sufficient time was made available for the cross-examiner to reach the subject matters which were important, and that if the opportunity to deal with alleged shortcomings in Mr Zheng's own conduct, in so far as it was based on the information apparently available, had not been dealt with in that time, and the wish was expressed to continue cross-examination to explore something which does not appear to have had much substance, the intervention which the Arbitrator made was an altogether unremarkable exercise of the discretionary power to control proceedings.

28 There are aspects of the facts as stated by Mr Bui which his statement did not make clear. Where the statement says that Mr Zheng did not reply to Mr Bui’s inquiry, simply looked at him and after a few seconds spat on his face, the word "spat" is in inverted commas, and this gives rise to some doubt as to what Mr Bui said had happened; whether the appearance was that Mr Zheng deliberately spat in Mr Bui's face by way of response to his inquiry, or whether the event did not appear to be deliberate. Without some further explanation from Mr Bui it is not really possible to know what he was asserting had happened. The inverted commas may indicate that the event was not quite what would ordinarily be understood by the word ”spat”, they may be there for emphasis or there may be some other explanation. The Arbitrator said, reasonably enough, “... the use of inverted commas seems to imply that it is not meant literally.” (Red 47 [43]). When Mr Bui said "... I instinctively raised my hand and struck Zheng with the piece of aluminium grate in the head ...” there is room for further explanation about what was referred to as "instinctively" and whether Mr Bui states that he deliberately struck Mr Zheng, or whether the first striking of Mr Zheng with a piece of aluminium crate in the head was an accidental result of instinctively raising his hand. Mr Bui's statement makes it clear that at the next stage when Mr Zheng swung his bag at Mr Bui, Mr Bui struck him again to defend himself; plainly this was deliberate, but the language which makes this clear casts doubt on whether Mr Bui intended to strike Mr Zheng on the first occasion.

29 Another small mystery is that in the course of the statement apparently taken from Mr Zheng by an investigator, it was put to Mr Zheng that he had made a rude sign to Mr Bui, but Mr Bui does not say in his statement that any such thing happened; nor does Mr Pham.

30 If the employer claimed to be entitled to succeed on the ground that Mr Zheng had departed from the course of his employment, or had been guilty of serious and wilful misconduct, there was a need for the employer to do more than put Mr Bui’s statement before the Arbitrator and attempt to elicit facts adverse to Mr Zheng's case by cross-examination of Mr Zheng; notwithstanding that Mr Zheng bore the onus of proof, there was a forensic need for the employer to make clear what it was that Mr Bui said had happened, more clearly than his statement showed, and this could be done by bringing Mr Bui to give oral evidence, or by producing a further and clearer statement, neither of which was done. Considerations of these kinds were available for the Arbitrator to consider, whether expressly or not, when assessing whether further cross-examination was required in fairness.

31 The ordinary expectation should reasonably be that every material thing which a witness has to say about the facts will appear in the statement of the witness produced before the Arbitration hearing by the person who relies on what a witness has to say. The Arbitrator no doubt can allow departures from this ordinary expectation, but the employer did not bring Mr Bui to the hearing, or seek any opportunity to obtain any further or clearer statement from him. In this forensic context I see no reason to doubt that the Arbitrator would have been in a position, after about half an hour or three-quarters of an hour had been spent on cross-examining Mr Zheng on a fairly limited set of facts, to decide whether it was appropriate to allow cross-examination to continue.

32 As decisions of an arbitrator are subject to appeal to a Presidential member under s.353 an arbitrator is under a duty to make a record of the evidence during the Arbitration hearing. The Commission has published a Record of Proceedings Policy. That Policy requires proceedings to be recorded during the Arbitration hearing phase where the parties are not settling their dispute and the Arbitrator must determine it. The Policy provides for recording proceedings by digital sound recording, producing a compact disc, a copy of which is to be provided to a party on request at no cost. The Commission does not provide a written transcript of Arbitration hearings. The Policy makes different provision for hearings before Presidential members, for which there is to be a written transcript. In the present case, for reasons which were not explained, there was no compact disc or sound recording of the Arbitration hearing and the evidence given there. This is a serious shortcoming, because it greatly impedes the right of appeal and the due exercise of powers of the Presidential member under s.352; and also impedes the conduct of a further appeal under s.353. According to circumstances, the absence of a sound recording could fairly readily lead a Presidential member to a decision to require a rehearing; although that result would not be automatic.

33 In the present case this large shortcoming was overcome by the Deputy President's acceptance of the following narration made by the solicitor who appeared at the Arbitration hearing for the employer of the events of which he complained in a letter dated 14 November 2003 to the Workers Compensation Commission:

5. The appellant submits that the Arbitrator was in error in purporting to rely on what is described as “sworn evidence of Mr Zheng” having regard to the fact of the employer having been denied natural and substantial justice in the course of the arbitration, in particular in respect of the evidence of Mr Zheng. In this regard the employer was specifically and expressidly prevented, by the Arbitrator, from testing the evidence of Mr Zheng by asking relevant and important questions on a number of critical issues including in particular (but not necessarily limited to) the issue of the fact of the altercation occurring prior to the applicant commencing work. Were a transcript available it would confirm several instances of the Arbitrator preventing the representative of the employer from questioning the applicant. Indeed at one point of the arbitration an exchange to the following effect took place between the Arbitrator and the representative of the employer:-

Arbitrator “I am not going to let you ask questions about that, we all know what the issues are in this case”.

Respondent’s solicitor “I am surely entitled to ask the applicant questions about this issue and to test his evidence and any inconsistencies in it”.

Arbitrator “I don’t have to let you ask questions about this and I’m not going to”.

Solicitor for the respondent “So just so that it is perfectly clear you are refusing me the right to ask the applicant questions in respect of this issue”.

Arbitrator “Yes”.

34 Accepting the employer’s solicitor’s narration of events before the Arbitrator would not always be appropriate where a record of the hearing before the Arbitrator was not available on a review. In the present case the Statement of Reasons is full and detailed, and the appellant's solicitor’s narration does not seem to have been disputed by the respondent. In theory it may be possible for the Deputy President, in the course of a review, to take evidence about what took place before the Arbitrator; except in disputes of the simplest kind, this is unlikely to be appropriate. The practice requiring a record of proceedings before Arbitrators to be made and kept is of high importance for the effectuality of proceedings on review, and the fact that no record was available and no explanation was forthcoming seems very unfortunate. It does not appear to me however that the Deputy President was in error in deciding to accept the employer's solicitor’s narration where the narration was not disputed.

35 The objectives referred to in ss.3 and 367 of the WIMWCA refer to the financial viability and cost effectiveness of the system, and are of special importance for procedural discretions in a claim of so modest a scale as Mr Zheng's claim. The same objectives would have a prominent claim for consideration in any decision whether or not a further hearing should be ordered, even if some unsatisfactory aspect of the first hearing had been exposed.

36 The Deputy President found that there was no denial of procedural fairness. In coming to this conclusion the Deputy President made a wide and careful survey of the nature of the proceedings, the legislation bearing on procedure in the Workers Compensation Commission, and the requirements for attainment of justice in the present case. If the present appeal is to succeed it must be shown that the Deputy President made an error of law in coming to this conclusion. Written and oral submissions on behalf of the appellant did not identify any error of law in a clear way; indeed they were not well accommodated to the limited nature of the right of appeal and were in terms more suited to an appeal by way of rehearing from the decisions of the Arbitrator and the Deputy President. Counsel laid out extensively the issues which could have been explored by an unrestricted cross-examination of Mr Zheng, the possible outcomes including the outcomes which might be produced by favourable answers, and put before the Court authorities which illustrated the importance attributed to cross-examination, not only in proceedings in this and other courts but also in administrative tribunals the proceedings of which are subject to judicial review.

37 An assessment of whether the Arbitrator's decision should be set aside for want of procedural fairness is no simple matter and could not be disposed of by applying any legal tests susceptible of clear statement relating to entitlement to cross-examine an applicant, or a witness. There is no legal right to cross-examine an applicant or other witness in the Workers Compensation Commission, and decisions whether to allow cross-examination or to limit it are discretionary decisions which must be made in a context of the legislation and practices which the Commission follows, and, at least as importantly, in the context of the facts and circumstances of the case under consideration.

38 A review is a different process to an appeal and the matters which may be considered and the manner in which they may be considered are somewhat wider. See Boston Clothing Co Pty Ltd v. Margaronis (1992) 27 NSWLR 580 at 584 (Kirby P). An attack, on review or otherwise, on an Arbitrator's discretionary decision in controlling procedure may be based on the test stated in House v. R [1936] HCA 40; (1936) 55 CLR 499 at 504 - 505; but that is not the only basis on which the Presidential member may act. The powers of a Presidential member on review are somewhat wider and extend to power to reopen consideration of a matter of which an Arbitrator has disposed; the manner in which the powers of the Presidential member are to be exercised is itself the subject of discretion of the Presidential member. I see no ground upon which it could be doubted that the Deputy President acted within her discretionary powers in disposing of the matter as she did. No rule of law required the Arbitrator not to limit cross-examination, and the view that there was no want of procedural fairness was a view which the Deputy President could reasonably reach without any error of law.

39 In my opinion the Court of Appeal should order:

Appeal dismissed with costs.

40 BELL J: I agree with Bryson JA.

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LAST UPDATED: 02/03/2006