South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 (16 February 2007)

Last Updated: 2 March 2007

NEW SOUTH WALES COURT OF APPEAL

CITATION: South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
40300 of 2005

HEARING DATE(S): 1 March 2006

JUDGMENT DATE: 16 February 2007

PARTIES:
South Western Sydney Area Health Service (Camden District Hospital) - Appellant
Linda Edmonds - Respondent

JUDGMENT OF: Giles JA Tobias JA McColl JA

LOWER COURT JURISDICTION: Workers Compensation Commission

LOWER COURT FILE NUMBER(S): WCC8473-03

LOWER COURT JUDICIAL OFFICER: Fleming DP

LOWER COURT DATE OF DECISION: 18 March 2004

LOWER COURT MEDIUM NEUTRAL CITATION:
[2005]NSW WCC PD 18

COUNSEL:
T M Wardell - Appellant
R Hanrahan - Respondent

SOLICITORS:
Turks Legal - Appellant
Maatouks Law Group - Respondent

CATCHWORDS:
Workers Compensation – procedure – Arbitrator – whether decision affected by actual bias – Arbitrator formulated case for claimant, then found it proved – whether guilty of prejudgment
Procedure – Arbitrator required to act in accordance with equity, good conscience and the substantial merits of the case – not bound by the rules of evidence – whether finding constituted an error of law – principles considered. (D)

LEGISLATION CITED:
Evidence Act 1995
Suitors Fund Act 1951
Workers Compensation Act 1987
Workers Compensation Legislation Amendment Act 2001
Workers Compensation Legislation Further Amendment Act 2001
Workplace Injury Management and Workers Compensation Act 1998
Administrative Appeals Tribunal Act 1975 (Cth)
Commonwealth Electoral Act 1918 (Cth)
Migration Act 1958 (Cth)
Workers Compensation Commission Rules 2003

CASES CITED:
Aluminium Louvres & Ceilings Pty Ltd v Xue Qin Zheng [2006] NSWCA 34
Aluminium Louvres & Ceilings Pty Ltd v Zheng [2004] NSWWCCPD 26
Australian Broadcasting Tribunal v Bond and Others [1990] HCA 33; (1990) 170 CLR 321
Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344
Far West Area Health Service v Colin Robert Radford [2003] NSWWCCPD 10
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; (2005) 2 DDCR 271
House v R [1936] HCA 40; (1936) 55 CLR 499
Johnson v Johnson [2000] HCA 48; (2001) 201 CLR 488
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611
Minister for Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26
R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; (1969) 122 CLR 546
Rail Services Australia v Dimovski [2004] NSWCA 267; (2004) 1 DDCR 648;
Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23; (2001) 206 CLR 128
Residents Against Improper Development Incorporated & Anor v Chase Property Investments Pty Ltd [2006] NSWCA 323
Robert Grimson v Integral Energy [2003] NSWWCCPD 29
Salemi v MacKellar (No 2) [1977] HCA 26; (1977) 137 CLR 396
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
Smith & Anor v Collings Homes Pty Ltd & Anor [2004] NSWCA 75
South Western Sydney Area Health Service v Edmonds [2005] NSWWCCPD 18
Sue v Hill [1999] HCA 30; (1999) 199 CLR 462
Sullivan v Department of Transport (1978) 20 ALR 323
Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1997] FCA 1488; (1997) 81 FCR 71
Testro Bros Pty Ltd v Tait [1963] HCA 29; (1963) 109 CLR 353
Vakuata v Kelly [1989] HCA 44; (1989) 167 CLR 568

DECISION:
1.Leave to appeal granted. 2. Appellant to file Notice of Appeal within seven (7) days of this order. 3.Appeal allowed. 4.Deputy President’s decision set aside. 5.Each party to bear their own costs of the proceedings before the Deputy President. 6.Matter remitted to the Commission constituted by a Presidential member for determination by the Commission in accordance with the decision of the Court. 7.Respondent to pay the costs of the appeal and to have a certificate under the Suitors Fund Act 1951 if otherwise qualified.


JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40300/05

WCC 8473/03

GILES JA

TOBIAS JA

McCOLL JA

16 February 2007

SOUTH WESTERN SYDNEY AREA HEALTH SERVICE v LINDA EDMONDS

The respondent suffered a frank injury to her right knee in May 1993 in the course of her employment with the appellant. On 6 August 2002 she sought lump sum compensation from the appellant’s insurer pursuant to ss 66 and 67 of the Workers Compensation Act 1987 (the “1987 Act”) for continuing troubles with her right knee (the “original injury”) and problems with her lower back and left knee (the “further problems”). The Insurer accepted liability in respect of the original injury, but declined liability in relation to the further problems on the grounds that the respondent’s employment was not a substantial contributing factor to them. The matter came before an Arbitrator of the Workers Compensation Commission to determine an impairment dispute prior to the matter being referred to an Approved Medical Specialist. During a telephone conference between the parties, the Arbitrator suggested the claim be amended to allege “injury by way of aggravation etc of disease” pursuant to ss 15 and 16 of the 1987 Act (the “disease injury case”). The respondent amended her claim accordingly. The Arbitrator subsequently heard the dispute and found for the respondent on the basis of the disease injury case. In so doing he accepted the opinion of in the report of a medical practitioner tendered by the respondent that “in general all the problems are work related”.

The appellant appealed to a Deputy President of the Workers Compensation Commission pursuant to s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the “WIM Act”). It alleged, in substance, that in suggesting the disease injury case and then finding in favour of the respondent on that basis, the Arbitrator had prejudged the matter and displayed actual bias. It also complained that there was no evidence to support the Arbitrator’s findings. The Deputy President dismissed the appeal. In considering the appellant’s no evidence complaint the Deputy President said the relative weight and relevance to be given to evidence was a matter for the discretion of the Arbitrator and was only reviewable in accordance with the principles expressed in House v The King [1936] HCA 40; (1936) 55 CLR 499.

The appellant sought leave to appeal to the Court of Appeal pursuant to s 353 of the WIM Act. An appeal pursuant to s 353 is confined to points of law

Held, granting leave and allowing the appeal, per McColl JA (Giles and Tobias JJA agreeing):

The no evidence ground

1. The Deputy President erred in law in concluding that the weight to be given to the expert evidence was a discretionary matter.

2. The medical opinion relied upon by the Arbitrator amounted to a bare ipse dixit and offered no evidentiary support for the Arbitrator’s conclusion.

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705; Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; (2005) DDCR 271 applied

3. Where the rules of evidence do not apply, in order to find error of law based on absence of evidence there must be an absence of material, whether strictly admissible according to the rules of evidence or not.

Smith & Anor v Collings Homes Pty Ltd & Anor [2004] NSWCA 75 applied

4. When informing itself of any matter, the Commission is to bear in mind the principles that evidence should be logical and probative, should be relevant to the fact in issue and the issues in dispute and that evidence based on speculation or unsubstantiated assumption and unqualified opinions are unacceptable.

5. It is desirable that expert reports used in the Commission conform to common law
standards of admissibility designed to ensure they have probative value. The basis for opinions should be explained.

Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; (2005) 2 DDCR 271 applied; Aluminium Louvres & Ceilings Pty Ltd v Zheng [2006] NSWCA 34 considered.

The prejudgment ground

6. The case for actual bias was not made out.

7. A party asserting actual bias on the part of a decision maker carries a heavy onus;
the allegation must be distinctly made and clearly proved; a finding of actual bias
should not be made lightly; cogent evidence is needed.

Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507; SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668; Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1977] FCA 1488; (1997) 81 FCR 71 at 123 applied

8. In order to establish that the Arbitrator was guilty of prejudgment sufficient to
disqualify him from hearing the case, the appellant had to establish that he was so
committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented.

Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 applied

9. The Arbitrator was entitled, in discharging his decision making function, to take into
account views he had formed in discharging his primary role of achieving a
settlement acceptable to both parties

Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 applied

The Nature of Review Ground

10. When examining an Arbitrator’s decision in an appeal by review under s 352(5) of
the WIM Act a Presidential member has power to reopen consideration of a matter
of which an Arbitrator has disposed.

Aluminium Louvres & Ceilings Pty Ltd v Xue Qin Zheng [2006] NSWCA 34 applied.

ORDERS

1. Leave to appeal granted.
2. Appellant to file Notice of Appeal within seven (7) days of this order.
3. Appeal allowed.
4. Deputy President’s decision set aside.
5. Each party to bear their own costs of the proceedings before the Deputy President.
6. Matter remitted to the Commission constituted by a Presidential member for
determination by the Commission in accordance with the decision of the Court.
7. Respondent to pay the costs of the appeal and to have a certificate under the
Suitors Fund Act 1951 if otherwise qualified.





IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40300/05

WCC 8473/03

GILES JA

TOBIAS JA

McCOLL JA

Friday 16 February 2007

SOUTH WESTERN SYDNEY AREA HEALTH SERVICE v LINDA EDMONDS

Judgment

1 GILES JA: The questions in the appeal and the circumstances in which they arise are fully set out in the judgment of McColl JA, which I have had the advantage of reading in draft.

2 For the reasons given by her Honour, the pre-judgment and specialised tribunal grounds of appeal should be rejected. I agree that the no evidence ground of appeal should be upheld and, with the following additional observations, with her Honour’s reasons.

3 As described by McColl JA, the learned Deputy President was incorrect in regarding the weight to be given to Dr Rivett’s opinion as a discretionary matter. That is an error in point of law, but since leave to appeal is required, it is necessary to consider the substance of the complaint made to the Deputy President.

4 As in Hevi Lift (PNG) Ltd v Etherington [2005] NSWCA 42; (2005) 2 DDCR 271 it is not necessary to consider whether in Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, Heydon JA stated too highly the requirements for admissibility of expert evidence. The present question is not one of admissibility, nor entirely one of the weight to be given to Dr Rivett’s opinion.

5 The issue to which Dr Rivett’s opinion went was whether the respondent’s diseases – chondromalacia patellae and osteoarthritis – were due to the nature of her employment or, perhaps more relevantly, whether her employment was a substantial contributing factor to the aggravation etc of those diseases. Dr Rivett said in his first report that “In general all the problems are work related”, and in his second report that the respondent’s impairments were “all due to the work-related injuries described in my main report”. He did not describe the work activities which could have brought about or aggravated etc the diseases, or explain how either might have occurred. Neither was self-evident from the history described by Dr Rivett.

6 In Hevi Lift (PNG) Ltd v Etherington this Court said that medical reports which did not identify a factual basis for the opinions, but simply asserted that employment was a significant contributing factor to injuries, carried no weight; and that the primary judge was not entitled to rely on general knowledge derived from his experience in the Compensation Court to infer how, in the absence of an identified factual basis, the opinions were formed. McColl JA, with whom Mason P and Beazley JA agreed, said at [85]-[86]:

“85 In my view, the primary judge should not have accorded the respondent’s medical reports any weight. They were incapable of constituting evidence capable of satisfying the s 9A requirement that the respondent’s employment was a substantial contributing factor to either of the mechanisms of injury upon which he relied.

86 Assuming, as appears to be the case, that the primary judge concluded that Doctor Selby Brown and Doctor Khoo’s opinions provided evidence capable of satisfying s 9A, he erred in law.”

7 It is possible that other evidence before the Arbitrator could have entitled him to find for the respondent on the issue to which Dr Rivett’s opinion went. However, that was not the course the Arbitrator took. He said -

“I prefer the evidence of Dr Rivett. I think the nature of the disease, which is osteoarthritis and the condition of chondromalacia patella is such that her duties in the workplace, even if they are mainly of a sedentary nature, would be sufficient to cause her injury and, therefore, I am satisfied that she suffers from an aggravation of a disease process.”

8 Passing over the conflation of causation and aggravation, the Arbitrator came to his finding either by giving weight to the opinion of Dr Rivett, or by applying some unstated general knowledge of work activities and their relationship, predominant over non-work activities, to the diseases, all in the absence of evidence and without explanation. Whichever course he took, he was in error.

9 It is unnecessary to consider the remaining grounds of appeal. The Arbitrator’s error was fundamental to his decision, and it would be unjust to leave the appellant subject to it; in the circumstances, leave to appeal should be granted.

10 I agree with the orders proposed by McColl JA.

11 TOBIAS JA: I agree with McColl JA and with the additional observations of Giles JA.

12 McCOLL JA: South Western Sydney Area Health Service seeks leave to appeal pursuant to s 353 of the Workplace Injury Management and Workers Compensation Act 1998 (the “WIM Act”) from a decision of Deputy President Fleming of the Workers Compensation Commission of New South Wales in turn dismissing an appeal from a determination of Arbitrator Wynyard: South Western Sydney Area Health Service v Edmonds [2005] NSWWCCPD 18. Leave is required because the Arbitrator’s determination, and hence the Deputy President’s decision, was interlocutory: s 353(4)(a). The appeal is confined to points of law: s 353(1).

13 Leave to appeal should be granted as, in my view, the appellant has demonstrated that the Deputy President erred in point of law.

Statement of the case

14 The respondent suffered a frank injury to her right knee in May 1993. The appellant’s worker’s compensation insurer accepted liability for that injury. The respondent continued in the appellant’s employ, according to the appellant, performing relatively sedentary duties. On 23 March 2002 she submitted a recurrence form asserting that her right knee had given way causing her to stumble, fall on both knees and, in so doing, injure her left knee. The form also said she had had ongoing problems with her right knee due to the original injury.

15 On 6 August 2002, the respondent’s solicitors wrote to the Manager of the NSW Treasury Managed Fund, the appellant’s insurer, seeking advice as to whether the Fund was prepared to compensate the respondent pursuant to ss 66 and 67 of the Workers Compensation Act 1987 (the “1987 Act”) on the basis of the findings of Dr Rivett, a copy of whose report of 7 June 2002 was enclosed. The letter sought the following compensation on behalf of the respondent pursuant to s 66 of the 1987 Act:

1. 11% permanent impairment of the back $6,600
2. 31% permanent impairment of the right leg at

or above the knee including problems below
the knee $23,250

3. 15% permanent impairment of the right leg at or

above the knee including problems below the knee $11,250

$41,400

The letter also sought compensation for pain and suffering pursuant to s 67 of the 1987 Act in the sum of $30,000. Particulars of that claim were provided. Paragraph 3 was clearly intended to refer to the respondent’s left leg, as is apparent from [17] below.

16 On 1 November 2002, a Litigation Officer of the Treasury Managed Fund (“the Insurer”) wrote to the respondent’s solicitors advising that the respondent had been assessed by Dr Hoe, and enclosing a copy of his report. The Litigation Officer stated that the Insurer was prepared to offer 10% ($7,500) in relation to the claim for the right leg at and above the knee and declined liability in relation to the back and left leg on the basis of a report from Dr Perla to the effect that the respondent’s employment was not a substantial contributing factor (see s 9A, 1987 Act).

17 On 31 March 2003, the respondent’s solicitors filed an Application to Resolve a Dispute (“ARD”) between the respondent and her employer pursuant to s 288 of the WIM Act which described the respondent’s injuries as:

· Permanent impairment of the back

· Permanent loss of efficient use of the right lower limb at or above knee and including problems below knee

· Permanent loss of efficient use of the left lower limb at or above knee and including problems below knee

18 The date of injury was identified as 23 May 1993. The nature of the dispute was identified as relating to the amount of compensation. Attention was drawn to the fact that a claim had been made on the Insurer, but the Insurer had refused to offer more than 10% in relation to loss of use of the respondent’s right leg. The dispute was identified as relating to the respondent’s claim for permanent impairment/pain and suffering. The total amount in dispute was said to be $41,400. It is not clear whether or not the respondent had abandoned her claim for $30,000 for pain and suffering, although it would appear from the Reply to which I next refer that the appellant did not understand she had.

19 The appellant filed a Reply to the ARD in which it identified the issues in dispute as being:

“The cause and extent of the permanent disabilities claimed, the extent of any entitlement to a lump sum under s 67 for pain and suffering, the extent to which a deductible should be applied in respect of the pre-existing condition and the validity of the proceedings, given the length of time between the filing of the Application and service.”

20 At the close of “pleadings”, therefore, there was no dispute between the parties as to the date the respondent was alleging she had been injured. This was to change, albeit, as both parties now contend, not at their behest.

21 Thereafter the matter came before the Arbitrator in a manner that does not clearly appear from the appeal papers. Mr Wardell, who appeared for the appellant on appeal but not below, advised the Court that the practice in the Commission once an ARD was filed was for it to be referred to an arbitrator who has a statutory duty to attempt to bring the parties to resolution.

22 In October 2003 the parties and their legal representatives participated in a telephone conference with the Arbitrator during which it appears directions were given in relation to amending the ARD and the employer’s Reply. The papers do not include a transcript of that telephone conference. Mr Wardell advised the Court, presumably on the basis of his experience in the Commission, that he assumed the initial telephone conference was to see whether the dispute could be resolved by negotiation. Resolution was not achieved. The appellant asserts, and the respondent does not deny, that during that conference, “at the instigation of the Arbitrator, the claim was amended to allege injury by way of the aggravation etc. of disease”. On 10 November 2003 the Arbitrator issued a document described as a “Direction” which relevantly states:

“1. I grant leave to the applicant to amend the ARD to plead in conformity with either s 15 or 16 of the 1987 Act.

2. The applicant is to lodge and serve an amended ARD within 6 weeks of the date hereof.

3. The respondent is to lodge an amended Reply within 14 days of service of the amended ARD on it...

5. I grant leave for both sides to file further medical reports from their experts arising from the proposed amendment.”

Section 15 deals with diseases of gradual process and s 16 with the aggravation, acceleration, exacerbation or deterioration of a disease.

23 It appears that the amendments were effected by an exchange of correspondence rather than any amended process. The respondent’s solicitors wrote to the Commission on 7 November 2003, referring to the October telephone conference and stating:

“We confirm that the applicant has leave to amend its [sic, her] application to include a Disease with the date of injury being 6 August 2003** and as such we hereby formally request that the Applicant’s Application is amended to reflect this change.

Furthermore, we advise that we have requested that Dr Rivett provide us with a further report recalculating permanent impairment losses into whole person impairment and this report will also be served upon receipt.

We confirm that the Commission advised our office that a new Application is not required to be filed and that this letter can simply be stamped and returned...”

The letter bears a stamp, apparently that of the Workers Compensation Commission, and the date received, 12 November 2003.

** At the telephone conference of 18 March 2004 to which I refer below it was agreed that this date should be 6 August 2002, the date of the claim for compensation.

24 On 8 December 2003, the appellant’s solicitors wrote to the Commission referring to the respondent’s solicitor’s letter and saying:

“We act for the respondent and refer to the letter sent to you by the worker’s solicitors dated 7 November 2003.

The respondent disputes the allegation of disease and the deemed date of injury being 6 August 2003.

The issues in dispute are as follows:

1. Whether the injury was in the nature of a disease of gradual process and the applicant’s employment with the respondent is employment to the nature of which the injury was due.

2. Whether the injury was in the nature of an aggravation, acceleration, exacerbation or deterioration of a disease and if so, whether the applicant’s employment with the respondent was a substantial contributing factor to any aggravation etc of the disease.

3. The cause and extent of any permanent disability allegedly suffered by the applicant.

4. The extent to which any permanent disability is attributable to a previous injury or pre-existing condition or abnormality.

5. Whether the applicant is entitled to compensation under s 67 for pain and suffering and if so, the amount that is reasonably proportionate to the maximum payable in a most extreme case.”

25 The next relevant event appears to have been the telephone conference between the Arbitrator, the parties’ legal representatives and the respondent on 18 March 2004. Mr Hick represented the appellant and Mr Maatouk represented the respondent. The appellant’s complaints to the Deputy President (which were rejected) included an assertion that in the course of this hearing the Arbitrator assumed the role of an advocate and acted outside the bounds of his role as a conciliator/arbitrator and had predetermined his position. The rejection of this complaint is the subject of the first two grounds of appeal and, accordingly, it is necessary to set out the relevant portions of the transcript of that hearing:

“[After introductory formal matters]

ARBITRATOR: Area Health Service, South Western Sydney Area Health Service. This is a teleconference I’ve asked to be recorded because there’s sufficient information before me to make a decision on the material given, assisted by both parties who are at the teleconference. One is Peter Maatouk from Maatouks Law Firm. He’s for the applicant. And the other is John Hick from Turks. Okay. Let’s just finish what we’re doing here and then we’ll come back to the substantive argument. The CD can wind away there. The nature and conditions of the appellant’s – of the applicant’s employment with the respondent between – when did she start work?

MR MAATOUK: When did you start work with them?

APPLICANT: I’ve been with the hospital --

MR MAATOUK: Twenty-three years.

APPLICANT: Yes.

MR MAATOUK: I don’t have an exact date. I know it was in 1980. She’s been with them for 23 years.

ARBITRATOR: Oh, right.

[There was then an exchange concerning whether there was a gap in insurance]

ARBITRATOR: The applicant alleges that her duties with the respondent have aggravated, exacerbated, accelerated and/or deteriorated her injury, which is pleaded to be a disease. Right? No, we don’t need anyone from 1980.

MR HICK: Sorry, what was the period, then?

ARBITRATOR: What I’m doing here is saying that the application is amended to allege the nature and conditions of the applicant’s employment with the respondent between 1980 to date. The applicant alleges that her duties with the respondent have aggravated, exacerbated, accelerated and/or deteriorated her injury, which is pleaded to be a disease. Right?

MR HICK: Well, from 1980 to date involves a further period of insurance.

ARBITRATOR: But if it’s a disease it doesn’t at all because it’s the --

MR MAATOUK: The last employer.

ARBITRATOR: The last employer pays.

MR HICK: That’s right. But the employer --

ARBITRATOR: All right. Well, okay, so you are making an application for an adjournment so that an earlier employer can be – an earlier insurer can be joined. Is that right?

MR HICK: I’m trying to work out what the effect of the amendment is.

ARBITRATOR: The effect of the amendment is to regularise the pleadings so that everybody knows that the basis of the claim is the aggravation of a disease process under section 16.

MR HICK: Well, is it pleaded in the alternative to the injury as originally pleaded?

ARBITRATOR: Yeah. No, it’s a – well --

MR HICK: An admission.

ARBITRATOR: I would have thought that the original – in view of the medical case, that the original claim wouldn’t be pressed. It’s a matter for you, Peter.

MR MAATOUK: Well, this whole thing, every time we speak it gets changed.

ARBITRATOR: Well, I mean, you can – it’s your case. You can deal with it as you like.

MR MAATOUK: I think we should stay as a disease, but it should be noted that the injury is from 1993, the initial injury that aggravated.

ARBITRATOR: All right. So it’s a disease or, in the alternative, a frank injury on that date. Is that right?

MR MAATOUK: That’s right.

ARBITRATOR: Okay. Have you got that, John?

MR HICK: Yeah, I’ve got that.

ARBITRATOR: All right. Now, what do you want to say about that amendment?

MR HICK: I accept what you say, that in terms of the frank injury my client was on risk and the second allegation in the nature of a disease, my client would effectively be the party liable in that respect.

ARBITRATOR: Yep, yep. Now, that’s the amendment. What’s your attitude to it, bearing in mind your letter to us saying that you -

MR HICK: Our position is that on the evidence we’d dispute the allegation.

ARBITRATOR: Right. You are relying on a letter to us of the 8th – to the Commission of 8 December 2003, which says you dispute the allegation of disease and the deemed date of injury being 6 August 2003. Well, I think that’s got to be 2002. I think we’re agreed on that, are we not?

MR HICK: Yes.

ARBITRATOR: Yep. All right. Okay. And the matters you’re putting in issue are whether it was in the nature of a disease, a gradual process, and the applicant’s employment with the respondent is employment to the nature of which the injury was due. Your second point is whether the injury was in the nature of an aggravation, acceleration, exacerbation or deterioration of a disease, and, if so, whether the applicant’s employment with the respondent was a substantial contributing factor to any aggravation, etcetera, of the disease. Then the third point is the cause and extent of any permanent disability allegedly suffered by the applicant. And then, fourthly, the extent to which any permanent disability is attributable to a previous injury or pre-existing condition or abnormality. And then, fifthly, whether the applicant is entitled to compensation under section 67.

MR HICK: Now, I think I should also perhaps add whether the applicant suffered any injury to her back and left leg arising out of or in the course of her employment.

ARBITRATOR: Right. Okay. Now, the next question is do you want to address this now or do you think this should properly be argued at a hearing?

MR HICK: Well, I’m happy to do it now.

ARBITRATOR: Okay. I think on the information before me we can do it now. You are happy to do that, Peter, are you?

MR MAATOUK: Yes, I am.

ARBITRATOR: All right. Well, John, would you like to make some submissions on it for the record?

[Mr Hick then made submissions that the Arbitrator could not be satisfied on the medical evidence that the opponent had suffered an injury in the nature of a disease within the meaning of 1987 Act, or that there had been any aggravation by reason of the opponent’s employment, nor that the disease was one of gradual process attributable to employment. He put in issue the question whether the respondent had suffered any injury to her left leg and back arising out of or in the course of her employment and whether the symptoms which manifested from time to time indicated either injury, or injury in the nature of disease. He submitted that the case was one of “a frank injury [on 23 May 1993] to the right knee and nothing more”, in respect of which the respondent had accepted liability]

ARBITRATOR: I’m just looking at your – yeah. All right. What you’re saying is that the evidence is just not there to substantiate a disease allegation.

MR HICK: There’s certainly no disease allegation, and particularly no relationship to the employment.

ARBITRATOR: All right. Well, Peter, I don’t need to hear from you on this. I think I’ve indicated from the outset that I’ve got a certain view, and I’m grateful to you, John, for the help you’ve given in your submissions, but I’m still of the view that there is sufficient evidence, and let me just recap a bit for the sake of the record.

When this matter came before me, it was pleaded as a frank injury in 1993, but the medical evidence supplied from both sides of the record seemed to indicate that there had been ongoing problems of a disease nature. That evidence comes from Dr Rivett’s report of 7 June 2002 for the applicant. He takes a history that she slipped on a kitchen floor in 1993, felt a ripping sensation, was off work for seven weeks. She resumed working four hours a day and worked a normal eight hours but continued to have pain intermittently, especially on stairs or prolonged walking. He then gives a number of different dates of further problems.

On 15 July 1988, the pain increased for no apparent reason. She went to an orthopaedic surgery and she had an arthroscopy at that stage, and there were loose bodies removed from the right knee and patellar surfaces. She was off for about six weeks then. Then on 20 July 1999 the pains in the right knee were aggravated by considerable walking when she was moved to a larger hospital. She was off work then for three months, and she started to develop some left sciatic pain as a result of this increased activity, says Dr Rivett, but had no lumbar pain at that stage. She thought favouring the right leg threw strain on the left side and on to her back.

On 13 December 2001 she walked up two flights of stairs and down again and the right knee swelled. She had treatment for that, and it settled down. And then again on 23 March 2002 when at home she was walking in a room when the right leg clunked and she fell on her knees.

The present symptoms: the right knee feels tight. There’s pain extending below the patella. She’s got pains around the left knee and she’s developed some occasional lumbar aches. She’s got limitations. She can walk for about 15 minutes but stand for only about five. She’s got a lifting tolerance of 10 kilograms but she can’t squat or kneel. That’s the history given to the medico-legal specialist.

And Dr Hoe for the respondent takes a similar history of a problem in 1993. He takes a history in his report of 12 September 2002 that she said that ever since then – that is 23 September ’93 – the right knee has never been quite right. It would throb and ache occasionally and at other times she could walk long distances without any problems. Being on her feet for extended periods of time would also cause problems. He details the further problems in July ’98 and July ’99.

Dr Perla, again for the respondent, takes a similar history, although he doesn’t note the continuing problems she had between ’93 and ’98. Just dealing with the diagnosis, Dr Perla says that ongoing discomfort is related to a pre-existing degenerative osteoarthritic condition, and he says that employment with Camden Hospital is no longer a cause of any condition involving her knees. He raises a question that one of the incidences [sic, incidents] happened at home. His view is that the work had no relationship or was certainly not a substantial contributing factor to her condition.

Dr Hoe’s view, again, was moderate degenerative changes in the right knee, mild degenerative changes in the left knee, mild degenerative changes in the lumbosacral spine. He, too, says that the current condition is not attributable to the incident in ’93 but there’s a flare-up of a pre-existing condition.

As opposed to that, Dr Rivett says that the applicant has got chondromalacia patella bilaterally and there are early osteoarthritic changes. There is marked microlateral ligament strain on the right and mild on the left. And he says also, number two, there is lumbar ligamentous strain and sacroiliac joint strain, possibly some right-sided sciatic nerve root irritation, and he says he would need to have an X-ray and possibly a CT scan to further the diagnosis. He says that the findings are consistent with the history given and in general all the problems are work related. There could possibly be some contribution from her overweight condition, including arthritic changes.

So, looking at those problems and – perhaps I should just mention Dr Hoe’s last report. Dr Hoe says in support of the letter from the solicitors for the respondent dated 8 December disputing disease – he says that in his report of 25 November 2003, number three, that she did not have any injury or incident she could recall that caused onset of the left knee pain or low back pain or sciatic pain. There was a definite injury to the right knee in 1993. However, it took five years until 1998 when she experienced significant symptoms to seek orthopaedic opinion. This delay in time suggests that the original incident was not the only factor and that degenerative changes over time due to obesity and age were also significant factors in the cause of her arthritis in the right knee. The arthritis is almost symmetrical, i.e. present in both left and right knees, with no history of injury in the left knee. This also suggests that her problems in the knees are due to constitution, obesity and age rather than any work-related injury. It is also noted her job is essentially a sedentary one in the role of a supervisor. Therefore it is unlikely to be a substantial contributing factor to her current condition.

The problem with that, of course, is that the evidence, or the history that Dr Hoe took in his earlier report was that she did continue to have symptoms and, indeed, that history was taken by Dr Rivett, that she continued to have symptoms following 1993.

I prefer the evidence of Dr Rivett. I think the nature of the disease, which is osteoarthritis and the condition of chondromalacia patella is such that her duties in the workplace, even if they are mainly of a sedentary nature, would be sufficient to cause her injury and, therefore, I am satisfied that she suffers from an aggravation of a disease process. If I’m wrong in that and she has suffered a frank injury in 1993 which has never recovered and, as a result of her disease has aggravated to the degree that she has got at the moment, which is a question for the AMS. I am, however, satisfied that the condition in both her legs and her back is work related and is a result of a disease process, as advanced by Dr Rivett in his opinion.

Therefore, I find that the deemed date of injury is 6 August 2002. Now, having said that, we’ve now got to send it off to an AMS. Do we have any preference for an orthopaedic surgeon?

MR MAATOUK: Not really.

ARBITRATOR: So Commission to decide?

MR MAATOUK: Yes, please.

ARBITRATOR: Is that John or Peter talking?

MR MAATOUK: It’s Peter.

ARBITRATOR: Right. John, are you happy with that?

MR HICK: Yes.

ARBITRATOR: And it’s in relation to both legs and the back. That’s the limit of the application, is it?

MR MAATOUK: Yes.

ARBITRATOR: And the Commission will automatically decide what is pre-existing or whether there’s constitutional problems that reduce the amount of whole person impairment, anyway. There’s no more material to come in. Is that correct?

MR MAATOUK: That’s right.

...

ARBITRATOR: Yeah. All right. Okay. I think that’s everything. So I’ll refer it off to an AMS and the matter will eventually come back.

MR HICK: Okay.

ARBITRATOR: Anything else?

MR MAATOUK: No, that’s it.

MR HICK: Not from me.

ARBITRATOR: Okay. Thank you, gentlemen.” [emphasis added]

26 On 22 March 2004, the Arbitrator issued a document entitled “Statement of reasons - ex tempore orders” which stated:

“In this matter a telephone conference was held on 18 March 2004 following an earlier teleconference on 29 October 2003 in which leave was given to the Applicant to amend its [sic, her] pleadings to allege a disease process. The respondent did not agree that the applicant suffered from a disease and submissions were made by Mr Hick who appeared from Messrs Turks Legal for the respondent...

To ensure the parties received a timely determination of their dispute the reasons for the orders set out below were given orally at the telephone conference. A sound recording of the reasons given is available to the parties.

The orders made are as follows:

1. The Applicant suffered an injury which was caused by the aggravation, exacerbation, acceleration and/or deterioration of a disease – namely chondromalacia patellae and osteoarthritis. She also suffers from degenerative changes in the right knee, left knee and lumbosacral spine.

2. The deemed date of injury therefore is the date of the claim, which is agreed to be 6 August 2002.

3. The matter is to be referred to an Approved Medical Specialist in terms of the attached referral.”

27 The appeal papers did not contain a copy of the referral.

Appeal to the Deputy President

28 On 8 April 2004 the appellant filed an application to appeal against the Arbitrator’s decision. A lengthy document, identified as a Statement of Grounds for Appeal, but more in the nature of a narrative, was appended to the application. It identified the decision appealed against as being:

“... the Arbitrator’s determination that the injury suffered by the respondent worker was in the nature of the aggravation of a disease etc caused by her employment with the respondent.”

The appellant was entitled to challenge this determination because, for the purposes of an appeal against an Arbitrator’s decision, “ ‘decision’ includes an award, interim award, order, determination, ruling and direction”: s 352(8), WIM Act.

29 The Statement added:

“The reason for the determination of this preliminary issue was cited as being to ascertain the relevant date of injury before referring the dispute to an Approved Medical Specialist for assessment.”

30 The Statement said the respondent had been given leave to amend the “pleadings” to allege a disease process, notwithstanding that “injury” as originally pleaded in her ARD had not been put in issue. It complained that at the 18 March 2004 teleconference the Arbitrator had formulated the “specific manner in which the nature of the injury suffered by the respondent should be pleaded”, noted that the appellant had been invited to make submissions on that point, that the Arbitrator had then determined it was unnecessary to hear from the respondent’s representative and had proceeded to give his decision. It contended that by “actively framing the pleading of the nature of the injury suffered by the [respondent]”, the Arbitrator had “assumed the role of an advocate and acted outside the bounds of his role as a Conciliator/Arbitrator and pre-determined his position”.

31 The Statement also argued that the Arbitrator had failed to have proper regard to the evidence. It compared, unfavourably, Dr Rivett’s opinion with those obtained from Dr Hoe and Dr Perla on the appellant’s behalf. It asserted that there was no evidence that the respondent’s employment had aggravated the osteoarthritic conditions in her knees and the degenerative changes in her spine. It submitted the only compensable loss was that caused by the frank injury suffered on 23 May 1993. The appellant sought an order that the Arbitrator’s orders be revoked and that the “relevant date of injury be specified as 23 May 1993.”

32 The respondent’s solicitor filed a Reply to which it is unnecessary to refer in detail. In essence the respondent objected to the first order sought by the appellant and asked the appeal be dismissed and the order made by the Arbitrator on 22 March 2004 be confirmed.

The Deputy President’s decision

33 The parties agreed the appeal from the Arbitrator’s decision could be decided on the papers. On 18 March 2005, the Deputy President gave reasons for granting leave to appeal, but dismissing the appeal.

34 The Deputy President rejected the appellant’s submission that the Arbitrator had assumed the role of an advocate, but was also critical of the respondent’s submission that the Arbitrator had been correct to give leave “to amend the pleadings to include disease”. According to the Deputy President both parties had misapprehended the role and function of the Commission. She said (at [11]):

“The submissions of both parties on this issue appear to misapprehend the role and function of the Commission and its statutory objectives. The Commission is not bound by technicalities and legal forms and may inform itself as it thinks fit (section 354 of the 1998 Act). Legal representatives must be aware that the Commission is not a court, but an independent statutory tribunal (Orellana-Fuentes v Standard Knitting Mill Pty Limited [2003] NSWCA 146 (20 June 2003), whose objectives are to provide a dispute resolution forum that is ‘fair and cost effective’ (section 367 of the 1998 Act). The fact that proceedings in the Commission are not governed by ‘formal pleadings’ has been discussed in earlier appeal decisions. In Far West Area Health Service v Colin Robert Radford [2003] NSW WCCPD 10 I noted that:
....

25. There are a number of ways in which the issues between the parties to a dispute lodged in the Commission are defined, without the need for formal pleadings. Firstly, they should be clearly articulated in the Application and Reply. Second, the identification and elucidation of the key issues in dispute are the primary functions of the Arbitrator and should occur at the first telephone conference between the parties, as set out in the Registrar’s Guideline to the Conciliation and Arbitration Process in the Commission. At this early stage the Arbitrator also reviews the evidence of each party relevant to the issues. In many cases the issues will be narrowed, with some resolved by conciliation, so that the course of the proceedings is directed only to those issues truly remaining in dispute. Third, the parties have a further opportunity to identify and narrow the issues in the informal environment of the conciliation and arbitration hearing. These processes essentially fulfil the same function as formal pleadings while at the same time being more accessible and not disadvantaging the self-represented person unable to prepare formal pleading documents.” (emphasis added)

35 The Deputy President concluded (at [18]) that the Arbitrator had not erred in “re-framing” the statutory basis of the respondent’s entitlement but had considered the whole of the evidence and any potential entitlement she had under the statutory scheme. She held that the determination of the respondent’s claim in terms of “aggravation of a disease” pursuant to s 16 was open on the evidence and that following the first telephone conference with the Arbitrator both parties had been on notice of the issues and been able to address them as re-framed.

36 The Deputy President then said:

“19. Although the Arbitrator did not err in his decision, in my view it was not unreasonable for the parties to assert some disquiet over the conduct of the proceedings. The Arbitrator dealt erratically in relation to the dates of onset of the injury, eventually accepting the worker’s legal representative’s suggestion, that this should be stated as 1993. The basis for this appeared to be the Arbitrator’s view that it was of no consequence if the injury was found to be an aggravation. I note that the transcript records Ms Edmonds’ legal representative stating in response to the Arbitrator’s comments at one point, that ‘Well, this whole thing, every time we speak it gets changed’.

20. The Arbitrator also indicated ‘from the outset [that] I’ve got a certain view’. Given that proceedings in the Commission are conducted on the basis of the parties filing all of their evidence and submissions early, i.e. at the time of the Application and the Reply, it is not unusual, nor inappropriate, for an Arbitrator to have formed a preliminary view of the dispute prior to hearing from the parties at a telephone conference. Indeed the Arbitrator’s careful appraisal of the material before him or her is the key to assisting the parties to come to a settlement of the dispute that is acceptable to all of them (section 355 of the 1998 Act). If the dispute is not settled by agreement then it is ultimately the Arbitrator’s ability to fairly and impartially weight the evidence that is before him or her, and to consider the submissions made as to the relevant law, which are fundamental to the impartial determination of the dispute.

21. In this matter the Arbitrator was forced to determine the ‘date of injury’ as a preliminary issue. Unfortunately, he did not clearly elucidate (at least in that part of the proceedings that was transcribed) the basis of the view he had taken ‘from the outset’. His pre-emptory [sic, peremptory] dismissal of the need to hear submissions from Ms Edmonds’ legal representative, after having heard lengthy submissions from the Respondent’s legal representative, may have reinforced the impression that he had no need to be persuaded of this ‘view’ by evidence and argument. I accept the Employer’s submissions to the extent only that the Arbitrator appeared, at some points in the proceedings, to ‘take the role of an advocate’. However, considering the whole of the reasons which the Arbitrator gave for the decision (given ex tempore), which in my view are adequate and in accordance with Section 294(2) of the 1998 Act and Rule 73 of the Workers Compensation Commission Rules 2003, I do not accept that the Arbitrator failed to decide the matter fairly and lawfully. Clearly this Arbitrator brought his own knowledge and experience of the operation of the Workers Compensation Acts to his role. This is the very expertise for which he is appointed as an Arbitrator and the task that he was expected to perform.” (emphasis added)

37 I interpolate to note it is not clear why the Deputy President said ([19]) that the Arbitrator accepted “the worker’s legal representative’s suggestion, that [the date of injury] should be stated as 1993”. This was wrong. He had found the deemed date of injury to be 6 August 2002, consistent with his conclusion that the respondent had established a s16 case. The appellant does not complain that this error influenced the Deputy President’s conclusion and I shall not consider it further.

38 She concluded (at [22]) that the Arbitrator did not err by failing to independently and fairly determine the threshold issue of the date of injury pursuant to the 1987 Act.

39 The Deputy President also rejected the appellant’s complaint that the Arbitrator should not have preferred Dr Rivett’s evidence to that of Drs Hoe and Perla, concluding that the Arbitrator had been entitled to come to his own view of the medical evidence and had not erred in doing so. She said (at [25]):

“The relative weight and relevance to be given to evidence is a matter for the discretion of the Arbitrator (see discussion in Aluminium Louvres & Ceilings Pty Ltd v Zheng [2004] NSW WCCPD 26). It is only where the Arbitrator can be said to have failed to exercise his discretion fairly and according to law that his decision should be overturned. This occurs where the Arbitrator has acted upon a wrong legal principle, allowed irrelevant considerations to influence the decision, made a material mistake as to the facts or failed to take into account relevant and material considerations (House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505; Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at 520, Re National Roads and Motorists Association Ltd [2003] FCAFC 206 at [21] to [21]).”

This ruling is the subject of the appellant’s complaint that the Deputy President misdirected herself as to the nature of the “review” prescribed by s 352 of the WIM Act.

40 The outcome of the appeal was that the Arbitrator’s decision was confirmed. The appellant was ordered to pay the costs of the appeal.

Issues on appeal

41 The notice of appeal identifies 9 grounds of appeal but, as outlined in the appellant’s submissions, there are essentially only 5 matters in issue. Those are:

1. Whether the Deputy President erred in law in finding the Arbitrator’s conduct of the proceedings did not exceed the bounds of impartiality required of Arbitrators determining disputes under the Workers Compensation Acts (the prejudgment ground).

2. Allied to the prejudgment ground is the appellant’s complaint that the Deputy President erred in law in finding the Arbitrator was entitled to bring his own expertise and experience to bear on the determination of the issues in dispute, as distinct from, or in addition to, determining the matter on the evidence (the specialised tribunal ground).

3. Whether the Deputy President erred in law in finding there was sufficient evidence to support the Arbitrator’s finding that the injuries alleged to the opponent’s back and left and right legs were injuries by way of aggravation of a disease within the meaning of s 4(b)(ii) of the Workers Compensation Act 1987 (the no evidence ground).

4. Whether the Deputy President erred in law in finding the issue of weight of evidence was a discretionary matter not capable of being the subject of a review within the meaning of s 352 of the WIM Act save where such discretion miscarried as matter of law (the nature of review ground).

5. Whether the Deputy President erred in law in failing to give any or any adequate reasons in relation to the foregoing matters (the reasons ground).

Submissions on appeal

42 Mr Wardell identified the appellant’s principal complaint in the appeal to the Deputy President as having been that the Arbitrator had conducted the proceedings in such a way that he ceased to be independent and had adopted the role of an advocate. He submitted that the Arbitrator had prejudged the matter, prevailed upon the respondent and her solicitor to reframe her claim as a “disease injury” claim, then made findings in accordance with that revised claim. In his written submissions Mr Wardell argued that the appellant had been placed in a position of arguing against a case in a set frame advocated by the Arbitrator who had denied it natural justice and procedural fairness and created a situation of actual or apprehended bias. In the course of argument, however, Mr Wardell accepted that the appeal to the Deputy President alleged actual, rather than apprehended bias, in the formulation of the disease injury case and that the appellant was confined to that case before this Court.

43 Mr Wardell submitted that there was a degree of overlap between the prejudgment ground and the no-evidence ground to the extent that, as I understand the submission, it might be seen that the Arbitrator’s acceptance of the respondent’s expert evidence of injury (which it was argued would otherwise not have supported his decision) demonstrated he had prejudged the case.

44 As to the no-evidence ground, Mr Wardell submitted that the Deputy President erred in two respects in finding that there was sufficient evidence to support the Arbitrator’s finding. First, he argued that Dr Rivett’s opinion under the heading ”Liability” that “[i]n general all the problems are work related”, amounted to nothing more than a bare ipse dixit. He contended Dr Rivett’s report fell far short of the standard expected of an expert opinion to accord it any probative value. He also argued that in placing weight upon Dr Rivett’s opinion, the Arbitrator had acted contrary the requirement in r 70 (a) of the Workers Compensation Commission Rules 2003 that “evidence should be logical and probative”.

45 Mr Wardell submitted that the Deputy President’s finding that the Arbitrator was entitled to accept Dr Rivett’s opinion was reached without any analysis of whether that opinion was, as a matter of law, sufficient to support the Arbitrator’s findings. He contended that, in the circumstances, the Deputy President had failed to appreciate the issue raised and, further, had failed to give any, or any adequate, reasons for reaching her conclusions.

46 In a separate, but related, submission, Mr Wardell contended that the Deputy President’s reference, in disposing of the evidentiary issue, (at [25]) that the relative weight and relevance to be given to evidence was a matter for the discretion of the Arbitrator and that its acceptance or rejection was a matter of discretion which could only be disturbed by reference to the principles enunciated in House v R [1936] HCA 40; (1936) 55 CLR 499, revealed that she had misdirected herself as to the nature of the “review” prescribed by s 352 of the WIM Act and thereby erred in law. He submitted that a judicial officer conducting a “review” was required to pay due regard to the decision below but might interfere with an erroneous finding of fact.

47 As to the specialised tribunal ground, Mr Wardell complained about that aspect of the Deputy President’s reasons which disposed of the appellant’s prejudgment complaint by stating (at [21]) that the Arbitrator had “brought his own knowledge and experience of the operation of the Workers Compensation Acts to his role” and “this is the very expertise for which he is appointed as an Arbitrator and the task that he was expected to perform”. He argued that inasmuch as this was a finding that the Arbitrator was entitled to substitute his own experience for the evidence, or to fill a gap in the evidence by reference to his knowledge, it amounted to an error of law. He submitted that, in contrast to the Compensation Court, which was acknowledged to have been an expert tribunal, it was doubtful whether the Commission was entitled to the same recognition, “bearing in mind that there is no requirement that its arbitrators be experienced in workers compensation law, (many of them being experienced in mediation).”

48 Mr Wardell also submitted that even if arbitrators appointed by the Commission did enjoy the status of an expert tribunal, it was incumbent upon them to state expressly where they were resorting to their specialised knowledge in order to reach a finding, that the Arbitrator had not done so in this case and, in the circumstances, it was an error of law for the Deputy President to justify his conduct on this basis. He also argued that it was not appropriate to invoke the status of an expert tribunal in circumstances where there was medical evidence which supported a contrary conclusion, at least without providing clear and cogent reasons as to why such evidence was rejected in preference for the Arbitrator’s own views: see Hevi Lift Ltd (PNG) v Etherington ([94]).

49 Finally, Mr Wardell submitted that the Deputy President had failed to give any, or any adequate, reasons in that she had made a number of general comments regarding the nature of proceedings in the Commission but failed to elucidate why the conduct of the Arbitrator, which she acknowledged as being less than satisfactory in a number of respects, did not vitiate his decision. He also complained that the Deputy President failed to give any reasons as to the issues of whether Dr Rivett’s report was capable of supporting the Arbitrator’s finding of disease, the finding of a causal nexus between the respondent’s work and the progression of any disease process or whether such disease in fact resulted from the frank injury.

50 I note that Mr Wardell sought to argue that neither Dr Rivett nor the Arbitrator addressed the issue determined in Rail Services Australia v Dimovski [2004] NSWCA 267; (2004) 1 DDCR 648 at [68], that s 16(1) of the 1987 Act is confined to injuries by aggravation of a disease, and that if there is an event which satisfies paragraph (a) of the definition of “injury”, the circumstance that it aggravated the disease and thus could have supported a case under paragraph (b)(ii) did not mean the “injury” consist[ed] in “the aggravation of a disease”. This point was not raised in the appeal to the Deputy President and Mr Wardell accepted, therefore, that it could not be the subject of complaint in this Court.

51 Although as I indicated at the outset this is a case in which, in my view, it is appropriate to grant leave to appeal, it is relevant to note Mr Wardell’s submissions on why leave should be granted, to place the dispute in context. He drew attention to the conclusive nature of an Approved Medical Specialist’s (“AMS”) certificate as to the degree of permanent impairment (see 1987 Act, Schedule 6, Pt 18C, cl 4(2)) and submitted that the Arbitrator’s finding as to “injury” was a final determination subject only to the AMS certificate. He contended that the date of injury, i.e. whether it was a frank injury in 1993, or a deemed date of disease injury in August 2002, was relevant to the appellant in critical respects. The first was that the nature of the injury would be relevant to the way in which the respondent’s entitlement was to be assessed by an AMS whether under the Table of Maims (pre-2002 s 66) or on the basis of whole person impairment (post-2002 s 66). Secondly, he contended that the nature of the respondent’s injury would be relevant to the assessment of the loss resulting from injury, in that loss resulting from constitutional conditions not aggravated by work would be excluded from the assessment.

52 Having stoutly resisted the appellant’s appeal to the Deputy President, the respondent reversed her attitude and supported its appeal in this Court. She consented to the orders sought by the appellant, save as to costs. It is unnecessary to refer in detail to the respondent’s submissions which departed completely from those advanced before the Deputy President because, as her counsel frankly concluded, she was better off under ss 66 and 67 with a 1993 date of injury, than one of August 2002. It is pertinent, however, to note her complaint about the Arbitrator’s approach to the hearing as, to some extent, this illuminates the appellant’s complaint about the determination.

53 Mr Hanrahan, who appeared for the respondent on appeal but not below, observed that neither party, at any stage, disputed that her application before the Commission was based on an allegation of a frank injury alleged to have occurred on 25 May 1993 consisting of a direct blow to her right knee resulting from a fall in the course of her employment. What was in dispute in the Commission was the causal nexus between that injury and the permanent losses she relied upon in her ARD. He contended that the respondent had always relied on her frank injury claim, and that the Arbitrator had failed to determine that aspect of her case. He also drew attention to the “Orders” made by the Arbitrator on 22 March 2004 and submitted they did not distinguish between “a disease ... contracted” (s 15) and the “aggravation...of a disease” (s 16) to which the worker’s employment had been a contributing factor (s 4, definition of “injury”). He contended that the questions raised by the “amended pleading” and the answers given by the Arbitrator were so uncertain that the decision was affected by jurisdictional error. The respondent had not raised these matters before the Deputy President and Mr Hanrahan accepted that they could not be raised in this Court.

54 Mr Hanrahan supported the Arbitrator’s determination to the extent that he argued that he was entitled to conclude from Dr Rivett’s report that the condition in the respondent’s legs and back was a result of a disease process and to that extent, the Deputy President had not erred in her review of the no-evidence ground. Nevertheless, he argued the original question, how much of any existing disease condition affecting the respondent’s right leg was caused by her 1993 fall, remained. In other words, if her incapacity as a result of the disease process could be attributed to the 1993 fall, a pre-2002 date of injury would be established. These, and other issues which it is unnecessary to detail, remained outstanding and should, in the respondent’s submission, have been determined as a matter of liability before the matter was referred to an Approved Medical Specialist for binding assessment of the quantum of her permanent losses. These issues were not argued before the Deputy President and cannot be resolved in this Court.

Legislative framework: structure and procedures of the Commission

55 When it is necessary to consider a question of fairness in relation to a tribunal, the whole of the circumstances in the field of the inquiry are of importance, including the nature of the jurisdiction exercised and the statutory provisions governing its exercise: R v Commonwealth Conciliation & Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; (1969) 122 CLR 546 at 553.

56 The long title to the WIM Act describes it as “An Act to provide for the effective management of work-related injuries and injury compensation for workers in respect of such injuries; and for other purposes”. The purpose of the WIM Act is, relevantly, to establish a workers compensation system with the objectives of providing injured workers with (inter alia) payment for permanent impairment and being “fair, affordable, and financially viable”: s 3(c) and (d).

57 Provisions relating to a worker’s entitlement to compensation, the benefits payable, common law remedies and other matters are contained in the 1987 Act which is to be construed with, and as if it formed part of, the WIM Act: s 2A(2), 1987 Act; see also s 60 WIM Act. They are collectively referred to as the “Workers Compensation Acts”: s 4, WIM Act.

58 Chapter 7 WIM Act deals with New Claims Procedures. Part 10 establishes the Workers Compensation Commission of New South Wales with such functions as are conferred or imposed on it by or under the Workers Compensation Acts or any other Act: s 366. Subject to the WIM Act the Commission has exclusive jurisdiction to examine, hear and determine all matters arising under that Act and the 1987 Act: s 105(1). The Commission has a number of objectives which include providing a fair and cost effective system for resolving disputes under the Workers Compensation Acts, providing a timely service to ensure that workers’ entitlements are paid promptly and providing an independent dispute resolution service that is effective in settling matters and leads to durable agreements between the parties in accordance with the Workers Compensation Acts: s 367. Members of the Commission are required to have regard to the Commission’s objectives in exercising their functions: s 367(2).

59 The Commission consists of a President, two Deputy Presidents, a Registrar and Arbitrators: s 368(1). A person is eligible to be appointed as an Arbitrator only if that person is a legal practitioner or has such qualifications, skills or experience as may be determined by the Minister: s 369(3). Arbitrators are, in the exercise of their functions, subject to the general control and direction of the Registrar: s 372(2).

60 For the purpose of any proceedings, the Commission is to be constituted by an Arbitrator save on an appeal against an Arbitrator’s decision: s 375. An Arbitrator is not to make an award or otherwise determine a dispute referred to the Commission for determination without first using best endeavours to bring the parties to a settlement acceptable to all of them: s 355(1). A person who is a party to proceedings before the Commission is entitled to be represented by a legal practitioner or by an agent: s 356(1).

61 The procedures by which a worker makes a claim for compensation are set out in Chapter 7. A claim must be made in accordance with the applicable requirements of the WorkCover Guidelines: s 260(1). Where there is a dispute in connection with a claim for compensation between the person who makes the claim and a person on whom the claim is made, or the employer on whom the claim is made and the insurer on whom the claim is made, any party to the dispute about a claim may refer the dispute to the Registrar for determination by the Commission: ss 287, 288. However only a claimant may refer a claim for lump sum compensation to the Registrar: s 288(1). If a dispute is determined by the Commission the Commission must issue to the parties a certificate as to the determination attaching a brief statement of the reasons for the determination: s 294(1) and (2).

62 Except as otherwise provided by the WIM Act, a decision of the Commission under the Workers Compensation Acts is final and binding on the parties and is not subject to appeal or review: s 350(1). A party to a dispute in connection with a claim for compensation may, with the leave of the Commission constituted by a Presidential member, appeal to the Commission from a decision in respect of the dispute by an Arbitrator: s 352(1). The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both at least $5,000 and at least 20% of the amount awarded in the decision appealed against: s 352(2). In Robert Grimson v Integral Energy [2003] NSWWCCPD 29 at [16] Deputy President Dr Gabriel Fleming held it was necessary to reconcile s 352(2) with the definition of “decision” in ss 352(8), which, as I have earlier observed, permits appeals to be brought from, inter alia, a determination such as that made by the Arbitrator in this case. Accordingly she held it was possible to appeal against an interlocutory decision involving no monetary “award”. The respondent did not challenge the competence of the appeal to the Deputy President.

63 An appeal under s 352 is by way of review of the decision appealed against: s 352(5). 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 except with the Commission’s leave: s 352(6). On appeal, the decision may be confirmed or may be revoked and a new decision made in its place or the matter may be remitted to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission: s 352(7). For the purposes of s 352, “decision” includes, relevantly, an “order, determination, ruling and direction”, except an “award, order, determination, ruling or direction of an interlocutory nature prescribed by the regulations”: s 352(8). It was not suggested the Arbitrator’s decision was caught by any regulation for the purposes of s 352(8).

64 The power to remit a matter to the Arbitrator pursuant to s 352(7) was inserted by Schedule 2, cl 5 of the Workers Compensation Legislation Amendment Act 2004 which commenced on 9 July 2004. The appellant’s appeal from the Arbitrator’s decision was lodged before that date; however the amendment applies to an appeal made under s 352 before its commencement: 1987 Act, Schedule 6, Pt 18H, cl 2; Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344 at [5].

65 Section 354 of the WIM Act relevantly provides:

“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 ...”

66 If a dispute is determined by the Commission, the Commission must, as soon as practicable after its determination, issue the parties to the dispute with a certificate as to the determination to which a brief statement is to be attached setting out the Commission’s reasons for the determination: s 294.

67 The Workers Compensation Commission Rules 2003 deal with a number of matters of procedure. Proceedings are to be commenced by way of an ARD which, once registered, must be served on the respondent: r 37. The respondent must lodge a Reply to the Application within 21 days from the date of registration of the ARD and serve a sealed copy of that Reply on the applicant and any other party to the proceedings: r 39. Where a Reply lodged in any proceedings raises issues not raised in the ARD, the applicant may, within 7 days of being served with the Reply, lodge with the Commission and serve on the respondent a response limited to those issues: r 41(1). The Commission may, on the application of a party to any proceedings before it, give that party leave to amend any document filed by the party in the proceedings if the Commission considers the amendment to be necessary for the avoidance of injustice: r 17.

68 The Deputy President observed (at [11]) “that proceedings in the Commission are not governed by ‘formal pleadings’...”. She referred to the decision in Far West Area Health Service v Colin Robert Radford [2003] NSWWCCPD 10 in which she had remarked (at [24]-[25]) that the “issues before the Commission could be identified both in the ARD and Reply, as well as during the first telephone conference with the Arbitrator and in the conciliation and arbitration hearing”. She accepted, however (at [12]), that the “issues in dispute must be referable to the ‘claim’ that was made by the worker”.

69 Rule 73 provides:

“73 Certificates of determination
(1) A statement of the Commission’s reasons referred to in section 294 (2) of the 1998 Act is to include:

(a) the 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.”

70 The President of the Commission has issued a document, the statutory basis for which is unclear, entitled Guidelines for the Practice of the Conciliation/Arbitration Process to which the Deputy President referred (at [11]) in concluding the Arbitrator had not assumed the role of an advocate. Mr Wardell provided the Court with the version of the Guidelines current at October 2005 on the basis they were in substantially the same terms as the Guidelines referred to by the Deputy President. Counsel suggested the Guidelines were made pursuant to the power contained in s 376 of the WIM Act, however that provision refers to the issue of Guidelines by the WorkCover Authority.

71 The Guidelines are “designed to enhance ... the practical operation of the dispute resolution process” the Commission has developed. They are based on a number of principles including that “Arbitrators are required to play an inquisitorial role in resolving disputes” and that “parties are entitled to procedural fairness consistent with the inherently inquisitorial character of the process and the objectives of the Commission.”

72 The first phase of the dispute resolution process is a telephone conference. During this the Arbitrator is to identify issues and differences between the parties in relation to the facts and issues and “practical” solutions. If some or all issues are not resolved at the telephone conference the Arbitrator then decides whether the dispute will be determined on the papers or must proceed to a conciliation conference/arbitration hearing. In order to prepare the matter for the next phase, the Arbitrator is to “clarify and reduce issues between the parties” and “identify whether there are preliminary and/or threshold issues, which should be determined first so as to maximise the efficiency of the proceedings” and “if possible ... determine disputed liability before a matter is referred to an Approved Medical Specialist.”

73 Mr Wardell also provided to the Court an undated document issued by the Commission headed “Arbitrators’ Code of Conduct” paragraph 2 of which states:

“2. The fundamental role of Arbitrators is to be impartial and independent in carrying out their role of attempting to bring the parties involved in a dispute to a settlement acceptable to all of them and, where this is not achieved, making a determination.”

74 Paragraph 4 reminds Arbitrators of their general responsibilities, among others, “to ensure fairness in dealing with parties involved in the arbitration process”. Paragraph 5 directs Arbitrators that in discharging their duty to ensure fairness they should, among other matters, “abide by principles of procedural fairness, ensure that all parties are given adequate opportunity to participate in proceedings (and) ensure that decisions are based on relevant and logically probative information.” It is not clear whether this document had been issued at the time of the telephone conference in March 2004. However, it does no more than re-state the common law principles of procedural fairness. I assume the Arbitrator was cognisant of his obligations in this respect generally even if not reinforced by a perusal of the Code. The Code appears to be somewhat inconsistent with the Guidelines insofar as it does not expressly contemplate that the arbitrator will play an inquisitorial role.

Legislative framework: assessment of lump sum compensation

75 No compensation is payable under the 1987 Act unless the applicant’s employment was a substantial contributing factor to an injury: s 9A(1). Matters which can be taken into account in considering whether a worker’s employment was a substantial contributing factor to an injury include the nature of the work performed and the particular tasks of that work (s 9A(2)(b)) and the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment: s 9A(2)(d).

76 “Injury” is defined in s 4, relevantly as follows:

4 Definition of injury
(cf former s 6 (1))

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, ...”

77 Among other matters ss 15 and 16 of the 1987 Act deal with how the date of injury is determined where either an injury is a disease of such a nature as to be contracted by a gradual process (s 15) or consists in the aggravation, acceleration, exacerbation or deterioration of a disease (s 16). In such cases the injury is, for the purposes of the 1987 Act, deemed to have happened, relevantly, either at the time of the worker’s incapacity, or if incapacity has not resulted from the injury, at the time the worker makes a claim for compensation with respect to the injury (s 15(1)(a) and s 16(1)(a)). In a s 15 case compensation is payable by the employer who last employed the worker in employment to the nature of which the disease was due: s 15(1)(b). In a s 16 case compensation is payable by the employer who last employed the worker in employment that was a substantial contributing factor to the aggravation etc., of the disease: s 16(1)(b).

78 Sections 66 and 67 of the 1987 Act were substantially amended in 2001 by the Workers Compensation Legislation Amendment Act 2001 (the “2001 Amendment Act”) and the Workers Compensation Legislation Further Amendment Act 2001 (the “Further Amendment Act”) which relevantly commenced on 1 January 2002. The amendments have potential implications for the respondent’s case.

79 Prior to 1 January 2002 a worker who claimed compensation for permanent injuries pursuant to s 66 was entitled to recover a percentage of $100,000 if he or she suffered a loss determined by reference to the Table set out in Division 4, Pt 3 of the 1987 Act. The 2001 Amendment Act (Sch 3) inserted a new s 66 amended by the Further Amendment Act (Sch 2) effective from 1 January 2002. The effect of the new s 66 was that after 1 January 2002, a worker was entitled to recover permanent impairment compensation pursuant to s 66 only if, and to the extent that, the degree of the worker’s permanent impairment fell within the ranges of permanent impairment set out in s 66(2). The amount of permanent impairment compensation was to be calculated under s 66 as in force at the date the injury was received: s 66(3). The degree of permanent impairment was to be assessed as provided by s 65 of the 1987 Act and Part 7 (Medical assessment) of Chapter 7 of the WIM Act.

80 Prior to 1 January 2002 a worker who suffered a loss mentioned in the Table to Division 4 was entitled to receive compensation by way of pain and suffering not exceeding $50,000 unless the compensation paid or payable under s 66 for the loss was less than 10% of the maximum amount from time to time referred to in s 66(1): s 67. Following the 2001 amendments, s 67 compensation was only available to a worker who received an injury that resulted in a degree of permanent impairment of 10% or more.

81 Subject to qualifications which are not relevant for present purposes, the 2001 amendments to ss 66 and 67 did not apply in respect of an injury received before their commencement even if that injury was the subject of a claim made after they commenced: 1987 Act, Schedule 6, Pt 18C, cl 3(1). However, if a new claim (being a claim made after 1 January 2002, s 250 WIM Act) was made in respect of an injury received prior to that date, lump sum compensation under either s 66 or s 67 of the 1987 Act (albeit in respect of those provisions as in force before the commencement of the 2001 amendments) could not be awarded where there was an “impairment dispute” unless the dispute had been the subject of an assessment by an Approved Medical Specialist under Part 7 of Chapter 7 of the WIM Act: 1987 Act, Schedule 6, Pt 18C, cl 4(1).

82 An “impairment dispute” is a “dispute about whether a loss or impairment exists and, if so, the nature and extent of the loss or impairment”: 1987 Act, Schedule 6, Pt 18C, cl 4(4). Part 7 of Chapter 7 of the WIM Act extends to the assessment of an impairment dispute as if it were a medical dispute under that Part subject to modifications prescribed by the regulations to the 1987 Act: 1987 Act, Schedule 6, Pt 18C, cl 4(3). Regulation 223 of the Workers Compensation Regulation 2003 modified Part 7 as it applied to a new claim in respect of an injury received before its commencement on 1 January 2002 so as to omit ss 322 and 323 of the WIM Act which relate to the mode of assessment of permanent impairment and deductions for pre-existing conditions respectively.

83 The Arbitrator appears to have intended to refer to an AMS impairment dispute concerning the extent to which the respondent’s diseases (being osteoarthritis and chondromalacia patella) were aggravated by her employment or, if he was in error as to her suffering from a work-related disease aggravation, the question of the extent to which her frank injury was aggravated by her diseases.

84 An AMS to whom an impairment dispute is referred is to give a medical assessment certificate as to the matters referred for assessment: s 325, WIM Act. An assessment certified in a medical assessment certificate pursuant to the medical assessment of an impairment dispute is conclusively presumed to be correct as to the matters in dispute in any proceedings in respect of the claim for compensation concerned: 1987 Act, Schedule 6, Pt 18C, cl 4(2).

85 It was common ground on appeal that the s 66 compensation available to the respondent would be less if the date of her injury was the deemed date of 6 August 2002 (the date of her claim for compensation) rather than 23 May 1993, the date of her original injury. It was for this reason that the respondent supported the appeal.

The Commission’s jurisdiction

86 Before considering the appellant’s primary ground of complaint, that the Arbitrator’s decision was tainted by actual bias, it is necessary to determine the nature of the Commission’s jurisdiction and, in particular, whether the Arbitrator was bound by obligations of procedural fairness. Consideration of that question turns on the circumstances of the case, the nature of the jurisdiction the Arbitrator was exercising and the statutory provisions governing its exercise: R v Commonwealth Conciliation & Arbitration Comm; Ex parte Angliss Group (at 552-553).

87 I have earlier set out the legislative framework in detail. To recapitulate briefly, the jurisdiction the Arbitrator was exercising under s 354 of the WIM Act required proceedings to be conducted with as little formality and technicality as the proper consideration of the matter permitted (s 354(1)). Section 354(4) provided that the Arbitrator was not bound by the rules of evidence but might inform himself on any matter in such manner as he thought appropriate and as the proper consideration of the matter permitted (s 354(2)), enabled him to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms, enabled informal hearings to be conducted. Section 354(6)) enabled him to dispense with a conference or hearing. Section 354 and other provisions give the Commission a wider range of discretionary choices about the procedure appropriate for a particular case than existed under earlier legislation: Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 at [22] per Bryson JA (Handley JA and Bell J agreeing).

88 Provisions such as s 354 do not release the Commission from the obligation to apply rules of law in arriving at its decisions: see Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 at 29 per Gleeson CJ and Handley JA. In Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [49], speaking of s 420 of the Migration Act 1958 (Cth) which is in like terms to s 354, Gleeson CJ and McHugh J said:

“49 [Such provisions] are intended to be facultative, not restrictive. Their purpose is to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals. The extent to which they free tribunals from obligations applicable to the courts of law may give rise to dispute in particular cases, but that is another question.”

89 Even before case management had become entrenched in the Australian legal system, Deane J (with whom Fisher J agreed) said in Sullivan v Department of Transport (1978) 20 ALR 323 at 342-3 of a provision substantially similar to s 354 (s 39 of the Administrative Appeals Tribunal Act 1975 (Cth)) that its objectives would “ordinarily be best achieved by a ready identification of the issues ... in truth, in dispute between the parties” and that “[c]ircumstances may ... arise in which ... a statutory tribunal, in the proper performance of its functions, will be obliged to raise issues which the parties do not wish to dispute and to interfere, either by giving guidance or by adverse ruling, with the manner in which a particular party wishes to present his case”.

90 In Sue v Hill [1999] HCA 30; (1999) 199 CLR 462 (at [42]) Gleeson CJ, Gummow and Hayne JJ said of s 364 of the Commonwealth Electoral Act 1918 (Cth), another “substantial merits - without regard to legal forms or technicalities” clause, that “[such] [p]rovisions do not exonerate the court from the application of substantive rules of law and are consistent with, and indeed require the application of, the rules of procedural fairness.”

91 Having regard to the nature of the dispute the Arbitrator was assigned to determine and the fact his decision directly affected both parties’ private rights he was, in my view, prima facie obliged to act in accordance with the obligations of procedural fairness and natural justice discussed by Deane J in Australian Broadcasting Tribunal v Bond and Others [1990] HCA 33; (1990) 170 CLR 321 at 365 ff; see also Salemi v MacKellar (No 2) [1977] HCA 26; (1977) 137 CLR 396 at 419 per Gibbs J (as his Honour then was). He was also, accordingly, obliged “to observe the recognized standards of judicial fairness” (Testro Bros Pty Ltd v Tait [1963] HCA 29; (1963) 109 CLR 353 at 370 per Kitto J) and, in particular, that which required him to bring an impartial mind to the exercise of his decision-making function: see Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka [2001] HCA 23; (2001) 206 CLR 128 at [20] per Gleeson CJ, McHugh, Gummow and Hayne JJ; Australian Broadcasting Tribunal v Bond and Others (at 366 – 367) per Deane J.

92 The Commission recognises its obligation to afford the parties “procedural fairness”, albeit that it couples that proposition with the proviso that Arbitrators “are required to play an inquisitorial role in resolving disputes” and that the “procedural fairness” extended be “consistent with the “inherently inquisitorial character of the process and the objectives of the Commission’s Guidelines”.

93 It is not clear from the documents placed before the Court precisely what the references to “inquisitorial role” and the “inherently inquisitorial character of the process” are intended to mean. It might be accepted that the absence of an obligation to abide by the rules of evidence, the Commission’s powers to inform itself in any manner it thinks appropriate, to determine its own procedure, to conduct informal hearings, and indeed to dispense with a hearing are indicia of an inquisitorial “character” in Commission proceedings: see Creyke and Bedford: Inquisitorial Processes in Australian Tribunals (AIJA, Melbourne, 2006, at 15)); see also Residents Against Improper Development Incorporated & Anor v Chase Property Investments Pty Ltd [2006] NSWCA 323 at [219] per McClellan CJ at CL.

94 Nevertheless, although the Commission operates pursuant to a legislative framework which frees it, to some degree, from “constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals” (Minister for Immigration and Multicultural Affairs v Eshetu at [49]), it is modelled on adversarial proceedings to the extent that issues are primarily defined by what for convenience can be described as “pleadings” (cf the primary judgement at [11]), the parties are entitled to be represented by a legal practitioner or agent and they adduce the evidence upon which they wish to rely before the Arbitrator. The proceedings “take the form of litigation between parties”: see Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (at [23] per Gleeson CJ, McHugh, Gummow and Hayne JJ). In contrast, in the “pure” European model of the inquisitorial process, the “task of the judge... is to act as a protagonist in the proceedings and it is the judge and prosecuting officials, not the parties, who have the responsibility for seeking out and testing the evidence, often in advance of a formal hearing”: Creyke and Bedford, at 4. Although I note, in this respect, that the Guidelines state “[q]uestions to witnesses, if any, will be by or through the Arbitrator”, it is not clear to what extent this is actually observed. Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng, for example, concerned a complaint that an Arbitrator hearing a case in 2003 limited the time for cross-examination by the employer.

95 However, even in the context of a Tribunal whose procedures have been held to be inquisitorial rather than adversarial in nature, plain words would be required to exclude the requirement to act impartially: Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (at [28] per Gleeson CJ, McHugh, Gummow and Hayne JJ; see also Kirby J (at [66] – [67]). I can find nothing in the WIM Act which excludes the obligation to so act.

96 I would also add that Creyke and Bedford suggest (at 9) that “purloining the label ‘inquisitorial’ to describe Australian inquisitorial tribunals may be misconceived ... and misleading”. It would not be appropriate to take these observations about this aspect of the Commission’s Guidelines further as the matter was not argued and it may well be the Court does not have all the relevant material before it. I would merely observe that the features of the adversarial model to which I have referred indicate, in my view, that the Commission cannot be described as “inherently inquisitorial”, at least if by that expression, it is intended to connote the “pure” European model of such processes.

The prejudgment ground

97 The appellant alleges that the Arbitrator displayed actual, not apprehended, bias. A party asserting actual bias on the part of a decision maker carries a heavy onus. The allegation must be "distinctly made and clearly proved": Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [69] per Gleeson CJ and Gummow J and [127] per Kirby J; SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668 at [36] per von Doussa J. A finding of actual bias should not be made lightly; cogent evidence is needed: Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1977] FCA 1488; (1997) 81 FCR 71 at 123 per Wilcox J; a finding of bias is a grave matter: ibid (at 127) per Burchett J.

98 In order to establish that the Arbitrator was guilty of prejudgment sufficient to disqualify him from hearing the case, the appellant had to establish that he was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented”: Minister for Immigration and Multicultural Affairs v Jia Legeng (at [72]) per Gleeson CJ and Gummow J (with whom Hayne J agreed (at [176])). In that case Gleeson CJ and Gummow J said:

“[71] ... Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion. The fact that, in the case of judges, it may be easier to persuade one judge of a proposition than it is to persuade another does not mean that either of them is affected by bias.

[75]...The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.
[78]...In considering whether conduct of a decision-maker indicates prejudgment, or in some other respect constitutes a departure from the requirements of natural justice, the nature of the decision-making process, and the character of the person upon whom Parliament has conferred the decision-making capacity, may be of critical importance.” (emphasis added)

99 In the same case Hayne J (with whose observation on this topic Gleeson CJ and Gummow J also agreed (at [100])) considered the content of the rules of procedural fairness and bias in the context of extra-curial decisions. He drew attention (at [178] – [181]) to the distinction between the content of the rules of procedural fairness as applied in courts, in a tribunal to which a decision of a disputed question is committed and which has “some or all of the features of a court”, an investigating body and a government minister. He described “bias” (at [183]) as used “to indicate some preponderating disposition or tendency, a ‘propensity; predisposition towards; predilection; prejudice’ ...[which] may be occasioned by interest in the outcome, by affection or enmity, or, ... by prejudgment ...[and that] [w]hatever its cause, the result that is asserted or feared is a deviation from the true course of decision-making, for bias is ‘any thing which turns a man to a particular course, or gives the direction to his measures’.” His Honour then said (footnotes omitted):

“[185] Saying that a decision-maker has prejudged or will prejudge an issue, or even saying that there is a real likelihood that a reasonable observer might reach that conclusion, is to make a statement which has several distinct elements at its roots. First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision-maker will apply that opinion to that matter in issue. Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case.
[186] Often enough, allegations of actual bias through prejudgment have been held to fail at the third of the steps I have identified. In 1894, it was said that:

‘preconceived opinions -- though it is unfortunate that a judge should have any -- do not constitute such a bias, nor even the expression of such opinions, for it does not follow that the evidence will be disregarded.’ (Emphasis added.)

Allegations of apprehended bias through prejudgment are often dealt with similarly.
[187] In the case of a court, it will usually be self-evident that the issue, if an issue of fact, is one which ought to be considered afresh for the purposes of the particular case by reference only to the evidence advanced in that case. Other decision-makers, however, may be under no constraint about taking account of some opinion formed or fact discovered in the course of some other decision. Indeed, as I have already pointed out, the notion of an ‘expert’ tribunal assumes that this will be done. ... It is critical, then, to understand that assessing how rules about bias, or apprehension of bias, are engaged depends upon identification of the task which is committed to the decision-maker. The application of the rules requires consideration of how the decision-maker may properly go about his or her task and what kind or degree of neutrality (if any) is to be expected of the decision-maker.
...
[192] Once it is recognised that there are elements of the decision-making process about which a decision-maker may legitimately form and hold views before coming to consider the exercise of a power in a particular case, it is evident that the area within which questions of actual or apprehended bias by prejudgment may arise is reduced accordingly...” (emphasis added)

100 In considering whether the Arbitrator had prejudged the case it must be borne in mind that there is no rule that condemns a person exercising judicial functions to silence. In R v Commonwealth Conciliation & Arbitration Commission; Ex parte Angliss Group, which concerned an allegation that remarks made by members of the Commonwealth Conciliation and Arbitration Commission demonstrated they had prejudged an issue, the Court observed (at 553 – 554):

“The requirements of natural justice are not infringed by a mere lack of nicety but only when it is firmly established that a suspicion may reasonably be engendered in the minds of those who come before the tribunal or in the minds of the public that the tribunal or a member or members of it may not bring to the resolution of the questions arising before the tribunal fair and unprejudiced minds. Such a mind is not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it.” (emphasis added)

101 In Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 571 (where actual bias was alleged) Brennan, Deane and Gaudron JJ observed:

"[A] trial judge who made necessary rulings but otherwise sat completely silent throughout a non-jury trial with the result that his or her views about the issues, problems and technical difficulties involved in the case remained unknown until they emerged as final conclusions in his or her judgment would not represent a model to be emulated."

102 In Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 (a case of alleged apprehension of bias) Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ said (footnotes omitted):

“13 Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of ‘the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case.’ Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.”

103 The Arbitrator made it plain both at the outset of the March 2004 teleconference (“there’s sufficient information before me to make a decision on the material given, assisted by both parties”) and immediately before delivering his reasons (“I think I’ve indicated from the outset that I’ve got a certain view”) that he had a view about the outcome of the case, no doubt reflecting his consideration of the materials before him as well as the earlier teleconference. It would be remarkable, and most probably amount to a failure to discharge his functions, if he had not. The critical question is whether he had so prejudged the matter as to be incapable of altering his view, whatever evidence or arguments may be presented. That question has to be considered in the context of the nature of the decision-making process in which he was engaged, having regard to the role he was playing: Minister for Immigration and Multicultural Affairs v Jia Legeng (at [78]) per Gleeson and Gummow J.

104 As the foregoing discussion reveals, a judicial officer has never been required to approach a case with a blank mind. Here the Arbitrator was required to consider the “substantial merits of the case” (s 354(3)). His first task at the initial teleconference, of which there is no record before the Court and at which he is said to have “instigated” the “disease injury” amendment, was to use his best endeavours to bring the parties to a settlement acceptable to all of them before determining any dispute (s 355). This was an “overall and continuing duty”: Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 (at [25]). Seeking to bring the parties to settlement no doubt meant he should, as the Guidelines outlined, identify issues and “practical” solutions”. If the initial teleconference did not achieve settlement he could either determine the matter on the papers or proceed to a conciliation conference/arbitration hearing. Where a further hearing was required it might be expected, as the Guidelines again outlined, that he would “clarify and reduce issues”. Other aspects of the Commission’s obligation to identify the issues without regard to technicality are set out in the Deputy President’s judgment (at [11] – [17]).

105 The nature of the jurisdiction the Arbitrator was exercising made it obligatory that he form a view about the issues. He appears to have expressed the view at the initial teleconference that the documents raised the “disease injury” issue. The respondent adopted that view and amended her case.

106 As Hayne J observed in Minister for Immigration and Multicultural Affairs v Jia Legeng (at [187]), in assessing whether a decision-maker has been guilty of actual (or apprehended) bias, it is necessary to consider the extent to which that person is constrained from taking into account an opinion formed in the course of undertaking his or her task. Thus, while the Arbitrator was under an obligation to act impartially, he was entitled, in my view, in discharging his decision-making function to take into account views he had formed in the course of discharging his primary role of achieving a settlement acceptable to both parties: s 355(1).

107 The case considered by the Arbitrator in March 2004 was formally that advanced by the respondent. He heard submissions from the appellant on that case. He did not call on the respondent. He gave detailed reasons analysing the medical evidence. Although, as shall appear, I do not agree with his evaluation of the evidence, it is apparent from his reasons that he considered both parties’ cases. In the latter respect I would add, that while “errors in reasoning and fact finding may be so egregious as to warrant an inference that the decision maker has prejudged the case to the point of being unable to decide it impartially” (SCAA v Minister for Immigration & Multicultural & Indigenous Affairs (at [37]), I would not draw that inference in this case.

108 I agree with the Deputy President (at [20] – [21]) that the Arbitrator’s approach lacked a certain délicatesse. In a jurisdiction attended by the relative informality of the Commission, it is well to be conscious of what Deane J said in Sullivan v Department of Transport (at 343), albeit in the context of a litigant in person, that:

“Ordinarily ... in the absence of a request for assistance or guidance by a party who is appearing in person, a tribunal under a duty to act judicially should be conscious of the fact that undue interference in the manner in which a party conducts his case may, no matter how well intentioned, be counter-productive and, indeed, even overawe and distract a party appearing in person to the extent that it leads to a failure to extend to him an adequate opportunity of presenting his case ... the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case.”

109 This injunction is particularly apposite when hearings are conducted over the telephone. It is important in such circumstances that an arbitrator be attuned to the inherent limitations of that medium and ensure that each participant is comfortable with the manner in which the hearing is progressing. It is apparent from the transcript of the March hearing which I have set out at length earlier in these reasons that both parties were uncertain about the way the Arbitrator was dealing with the matter; indeed that both “felt” they were being steam-rolled, a sentiment which is now manifest in their joinder in common cause on the appeal.

110 However “the requirements of natural justice are not infringed by a mere lack of nicety” (R v Commonwealth Conciliation & Arbitration Commission; Ex parte Angliss Group (at 553)). The transcript does not indicate that the parties were not afforded the opportunity to present their cases. The fact that the Arbitrator did not call upon the respondent is of no moment. That is a common approach in proceedings where all the papers have been before the decision-maker(s) prior to the hearing commencing, so that views can be provisionally formed in a manner which will facilitate an expeditious hearing. It does not demonstrate the Arbitrator had so prejudged the matter as to be incapable of altering his view.

111 The appellant’s specialised tribunal ground was an aspect of its complaint about the manner in which the Deputy President disposed of the prejudgment complaint by saying (at [21]):

“...Clearly this Arbitrator brought his own knowledge and experience of the operation of the Workers Compensation Acts to his role. This is the very expertise for which he is appointed as an Arbitrator and the task that he was expected to perform.”

112 In my view this merely recognised that the Arbitrator was a barrister with experience in the workers compensation jurisdiction which he brought to bear in his consideration of the issues. Acknowledgment of this unremarkable proposition does not demonstrate error on the Deputy President’s part.

113 Having regard to the nature of the jurisdiction the Arbitrator was exercising I am not satisfied that the appellant has discharged the heavy onus on a party alleging actual bias.

114 The prejudgment and specialised tribunal grounds of appeal should be rejected.

The no evidence ground

115 In order to determine the no evidence ground it is necessary to re-state the issues the Arbitrator was deciding. As I understand the ARD, as amended by the respondent’s solicitor’s 7 November 2003 letter and the replies, they were:

(i) whether the respondent had suffered permanent impairment/permanent loss to her back, right lower limb and knee and left lower limb arising from the injury on 23 May 1993 (the “original case”);

(ii) relevantly, whether the respondent had an injury being a disease of such a nature as to be contracted by a gradual process and, if so, whether the appellant had employed her “in employment to the nature of which the disease was due”; (s 15); or

(iii) whether the respondent had an injury being the aggravation etc of a disease and, if so, whether her employment was a substantial contributing factor to aggravation etc (s 16).

(ii) and (iii) refer to the “disease injury” case.

116 Before the Arbitrator the respondent relied upon three reports from Dr Rivett. In the first, dated 7 June 2002, Dr Rivett recited the respondent’s history relevantly in the following terms:

“(1) On 23 September 1993 she slipped on the kitchen floor [this was at work] wrenching the right knee into abduction ... she resumed working 4 hours a day and worked up to the normal 8 hours but continued to have pain intermittently, especially on stairs or prolonged walking.

(2) On 15 July 1998 the pain increased for no apparent reason and she was referred to an orthopaedic surgeon. Arthroscopy was performed ... she ... was off work for about 6 weeks ...

(3) On 20 July 1999 the pains in the right knee were aggravated by considerable walking when she was moved to a larger hospital. She was off work then for 3 months ... she also developed some left sciatic pain as a result of this increased activity but had no lumbar pain at that stage. She thought it was favouring her right leg that threw strain onto the left side and onto her back.

(4) On 13 December 2001 she walked up 2 flights of stairs and down again, and the right knee swelled ...

(5) On 23 March 2002 when at home she was walking in a room when the right knee ‘clunked’ and she fell on her knees ... this put her off work for 10 days...”

117 After referring to the respondent’s present symptoms, investigations and his examination Dr Rivett said:

“OPINION

(1) There is evidence of chondromalacia patellae bilaterally and there are early osteoarthritic changes. There is marked collateral ligament strain on the right and mild on the left.

(2) There is lumbar ligamentous strain and sacroiliac joint strain. There is possibly some right sided sciatic nerve root irritation. One would need to have an x-ray and possibly a CT scan of the lumbar spine to further the diagnosis here.

LIABILITY

The findings are consistent with the history given, and in general all the problems are work-related. There could possibly be some contribution from her overweight condition, including the arthritic changes.”

118 Dr Rivett’s second report, also dated 7 June 2002, opined that the respondent had a permanent impairment of her back of 11%, a permanent loss of efficient use of the right lower limb at or above the knee and including problems below the knee of 31% and a similar loss in the left lower limb of 15% and that “these are all due to the work-related injuries described in my main report.”

119 On 10 November 2003 Dr Rivett opined that the “losses in the lower limbs ... equate to a combined whole person impairment of 17%” and that “using AMA Guides, there is no calculable WP impairment of the back.”

120 The appellant relied on reports from Dr Perla and Dr Hoe.

121 In his report of 10 April 2002 Dr Perla recited substantially the same history as had Dr Rivett. He viewed x-rays of the respondent’s right and left knees and noted that the right knee was reported as showing calcification in the medial collateral ligament consistent with old trauma and moderate osteoarthritic changes in the medial tibio-femoral joint space and at the patello-femoral joint space and that x-ray of the left knee showed mild osteoarthritic changes. As far as diagnosis was concerned it was his opinion that “any ongoing discomfort at the moment is related to a pre-existing degenerative osteoarthritic condition.” It was also his opinion “...that employment with Camden Hospital [was] no longer a cause of any condition involving her knees and no longer is employment a substantial contributing factor.” He did “not believe that the incident at home [in March 2002] was related to her previous work injury” and opined that “the cause of the current condition is a degenerative osteoarthritic problem.”

122 In the opinion section of his report, Dr Hoe noted that the respondent attributed the back pain and sciatica and left knee pain she developed in July 1999 to not being able to walk normally due to her right knee problem. However, in his opinion “these problems with the back, sciatica and left knee pain were unrelated to the original injury” and it was “more likely that these were caused by age-related degeneration and her gross obesity.” (The respondent was 5’3” tall and weighed 115 kg).

123 In Dr Hoe’s opinion the fall on 23 September 1993 was a substantial contributing factor to the injury to the respondent’s right knee and its current condition. He also attributed the flare-up in the respondent’s right knee in July 1998 to her pre-existing condition. In Dr Hoe’s opinion, however, the respondent’s left knee problem and back problem were not a result of her fall or her occupation.

124 In a later report, 12 September 2002, Dr Hoe assessed the respondent as having permanent impairment of her right leg at and above the knee of 10% and attributed all of that to her 23 September 1993 injury. He said the respondent also had a permanent loss of efficient use of the left leg at and above the knee of 5% but attributed none of that to her fall or to the nature and condition of her occupation but to age-related degeneration and obesity. He opined that she had a permanent impairment of the back of 5% of a most extreme case and, again, attributed this to age-related degeneration and not to any work-related injury or incident.

125 In his fourth report dated 25 November 2003 Dr Hoe supplemented his earlier opinions, saying:

“1. It is well known that arthritis of the knee is more common in obese people than persons of normal weight.

2. Degenerative disease of the lumbar spine is common in the community, its incidence increasing with age and does not have to be associated with injury.

3. She did not have any injury or incident that she could recall that caused onset of left knee pain or low back pain or sciatic pain. There was a definite injury which caused injury to the right knee in 1993. However it took five years, until 1998, when she experienced significant symptoms to seek orthopaedic opinion. This delay in time suggests that the original incident was not the only factor and that degenerative changes over time due to obesity and age were also significant factors in the cause of her arthritis in the right knee. The arthritis is almost symmetrical, ie present in both left and right knees with no history of injury in the left knee. This also suggests that her problems in the knees are more due to constitution, obesity and age rather than any work-related injury. It is also noted that her job is essentially a sedentary one in the role of a supervisor. Therefore work is unlikely to be a substantial contributing factor in her current condition. ...”

126 He repeated his opinion that the impairment in the respondent’s right leg was, in substance, work-related while the impairment in her left knee and back could not be attributed to her fall or occupation.

127 While the Commission may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matter before it permits (s 354(2)), r 70 of the Workers Compensation Commission Rules 2003 provides that when informing itself on any matter, the Commission is to bear in mind the principles that evidence should be logical and probative, should be relevant to the fact in issue and the issues in dispute, that evidence “based on speculation or unsubstantiated assumption is unacceptable” and that “unqualified opinions are unacceptable”.

128 Rule 70 broadly reflects fundamental principles of the common law concerning admissibility of evidence. Indeed, in Aluminium Louvres & Ceilings Pty Ltd v Zheng [2004] NSWWCCPD 26 (at [24]) Deputy President Fleming said:

“Where the rules of evidence do not apply, the conduct of proceedings will be a matter to be determined according to principles of fairness, taking into account the nature of the proceedings, the legislative requirements and the demands of the instant case. The Commission may have regard to evidence that would not be admissible in a court in accordance with the rules of evidence. Fairness must guide the weight to be given to this evidence.

129 Where the rules of evidence do not apply, in order to find error of law based on absence of evidence there must be an absence of material, whether strictly admissible according to the rules of evidence or not: Smith & Anor v Collings Homes Pty Ltd & Anor [2004] NSWCA 75 at [32] per Mason P (Handley JA and Campbell J agreeing)

130 In Hevi Lift (PNG) Ltd v Etherington at [84] I said (Mason P and Beazley JA agreeing) that “[a] court should not act upon an expert opinion the basis for which is not explained by the witness expressing it”. In so saying, I referred with approval (inter alia) to Heydon JA’s analysis of the admissibility of expert evidence in Makita (Australia) Pty Limited v Sprowles (at [59] – [82]). In that case (at [59]) Heydon JA cited with apparent approval Lord President Cooper’s statement in Davie v The Lord Provost, Magistrates and Councillors of the City of Edinburgh (1953) SC 34 at 39-40 that:

“... the bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised, and the parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert.”

131 This statement is apposite in the context of Commission hearings, and, indeed, is implicitly recognised in r 70. While it must be recognised that “[t]here 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” (Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 at [37]), the fact that cross-examination of an expert witness may be permitted indicates the desirability of expert reports conforming as far as possible to common law standards of admissibility designed to ensure they have probative value. Even if that is too stringent an approach in the face of s 354, as the rules recognise, evidence must be “logical and probative” and “unqualified opinions are unacceptable”.

132 In my view Dr Rivett’s statement that “in general all the problems are work-related” which the Arbitrator accepted in concluding that the respondent’s duties were sufficient to cause her injury (apparently within the meaning of s 16) amounted to a bare ipse dixit. It was not probative of the issue before the Arbitrator.

133 The Deputy President rejected the appellant’s challenge to the Arbitrator’s acceptance of Dr Rivett’s opinion on the basis that the relative weight and relevance of the expert evidence was a discretionary decision which could only be disturbed on House v The King principles. This was, in my view, an over-generalisation. There are certainly aspects of the laws of evidence which involve discretionary decisions. The application of ss 135 and 136 of the Evidence Act 1995 are ready examples. However the question whether expert evidence relied upon by a party is probative of a matter in issue is determined in accordance with legal principle and is susceptible to review on appeal in accordance with the principles which govern appellate review of findings of fact: see generally Fox v Percy [2003] HCA 22; (2003) 214 CLR 118.

134 The appellant’s challenge to this aspect of the Deputy President’s reasoning was subsumed in its nature of review ground. It is not clear that the Deputy President’s decision on this point was influenced by a concern that her power to consider the Arbitrator’s acceptance of Dr Rivett’s opinion was in any way circumscribed by the fact that an appeal under s 352(5) was by way of review. If that was a concern, it is sufficient to note that in Aluminium Louvres & Ceilings Pty Limited v Xue Qin Zheng [2006] NSWCA 34 this Court considered an appeal from a decision of Deputy President Fleming who, on a s 352 appeal had held that an Arbitrator had not denied the appellant procedural fairness in ruling that cross-examination of the worker at an arbitration be limited. Bryson JA (with whom Handley JA and Bell J agreed) said at [38]:

“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. ...” (emphasis added)

135 It was, therefore, incumbent on the Deputy President to consider the appellant’s no evidence submission to determine whether it was “logical and probative” as required by r 70. There having been no objection to the admissibility of Dr Rivett’s report, the question for the Arbitrator and the Deputy President was its weight, especially whether it went beyond “a bare ipse dixit”: Makita (Australia) Pty Limited v Sprowles (at [86] – [87]). This was the way, in substance, Mr Hick argued the issue before the Arbitrator.

136 The Arbitrator relied on Dr Rivett’s report to reach his conclusion that:

“...the nature of [the respondent’s] disease, which is osteoarthritis and the condition of chondromalacia patella is such that her duties in the workplace, even if they are mainly of a sedentary nature, would be sufficient to cause her injury and, therefore, I am satisfied that she suffers from an aggravation of a disease process. If I’m wrong in that and she has suffered a frank injury in 1993 which has never recovered and, as a result of her disease has aggravated to the degree that she has got at the moment, which is a question for the AMS. I am, however, satisfied that the condition in both her legs and her back is work related and is a result of a disease process, as advanced by Dr Rivett in his opinion.”

137 It is notable that Dr Rivett’s report contained no description of the respondent’s duties which might have provided a factual basis for the proposition that the respondent’s “problems are work related”. With the exception of the 1993 incident in which her right knee was injured at work, all other complaints of recurrence of pain in the right knee either had no apparent explanation (the 1998 pain) were linked to walking, both at work and at home (1999, 2002) or walking up and down stairs in an unspecified location (2001). The respondent would undoubtedly have engaged in these activities whether at work or not. I can see no expert support for the Arbitrator’s conclusion that “her duties in the workplace, even if they are mainly of a sedentary nature, would be sufficient to cause her injury.” Sedentary activity is not confined to the work place.

138 While the respondent “thought it was favouring the right leg that threw strain onto the left side and on to her back,” Dr Rivett did not indicate whether that was a valid proposition. Further, he did not explain why it was more probably her work duties than ordinary wear and tear which caused her pain, particularly in the left leg and lower back.
139 In my view, Dr Rivett’s opinion offered no evidentiary support for the Arbitrator’s conclusion. The Deputy President erred in law in concluding to the contrary.

140 The no evidence ground should be upheld.

The reasons ground

141 The conclusion on the no evidence ground is sufficient to uphold the appeal. As to the final ground, I would only say that having regard to the manner in which the Deputy President directed herself (particularly on the no evidence ground) her reasons were adequate (if erroneous).

Conclusion

142 The consequence is that the impairment dispute will have to be re-determined by an Arbitrator.

143 The respondent submitted that if the appeal was allowed, the appellant should pay her costs on a party/party basis and the costs orders made by the Deputy President should not be disturbed. The basis of the submission concerning the costs of the appeal was that the respondent had supported the appellant “in the interests of justice”. Mr Hanrahan agreed the respondent could have put on a submitting appearance, but contended that her involvement had assisted in highlighting the significance of a 1993, rather than 2002, date of injury.

144 Mr Wardell submitted that the costs order in the Commission should be replaced by one ordering each party to bear their own costs, and that, if the appeal was allowed, the respondent should be ordered to pay the appellant’s costs.

145 In my view Mr Wardell’s submission should be accepted. The respondent resisted the appellant’s appeal to the Deputy President. While the ordinary outcome of her decision being set aside would be that the respondent bear the appellant’s costs of that appeal, the practice in the Commission is that a worker is not ordered to pay the costs of unsuccessful steps before the Commission. However that practice does not apply in this Court. I can see nothing to displace the usual rule that costs should follow the event of the appeal.

Orders

146 I propose the following orders:

(1) Leave to appeal granted.

(2) Appellant to file Notice of Appeal within seven (7) days of this order.

(3) Appeal allowed.

(4) Deputy President’s decision set aside.

(5) Each party to bear their own costs of the proceedings before the Deputy President.

(6) Matter remitted to the Commission constituted by a Presidential member for determination by the Commission in accordance with the decision of the Court.

(7) Respondent to pay the costs of the appeal and to have a certificate under the Suitors Fund Act 1951 if otherwise qualified.

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LAST UPDATED: 1 March 2007