29 June 2021

Findings of credit and procedural fairness in the Personal Injury Commission

In proceedings before the Personal Injury Commission (PIC) it is rare for witnesses to give oral evidence and to be cross examined. Witness evidence is almost exclusively given in the form of statements.

Where findings are made about the credibility of witnesses without cross examination, this may deprive the party relying on the evidence of procedural fairness.

This issue was dealt with in a recent Presidential Decision in the matter of Finney Pty Limited t/as Cut Price Car Rentals v Chequer [2021] NSWPICPD 13 

The arbitrator’s findings

Craig Chequer (worker) was employed as a motor mechanic, by Finney Pty Limited t/as Cut Price Car Rentals (employer).

On 13 December 2017, the worker injured his right knee at the employer’s workshop at Tweed Heads.

The employer had premises at a location in Tweed Heads in New South Wales, and at two locations in Queensland. The employer held worker’s compensation insurance in Queensland, but not in New South Wales. The issue was whether the worker’s employment was connected with the State of New South Wales or Queensland – which would determine under which State legislation he should be compensated.

On 8 October 2020, the Arbitrator determined the worker was to be compensated under the New South Wales legislation. In coming to this conclusion, the Arbitrator rejected the evidence of the employer’s witness.

The Arbitrator found the employer’s witness had given exaggerated, unreliable evidence that was at least in part untrue. The Arbitrator determined the witness had given evidence for the purpose of achieving “a false account to suit the insurance position’ of the employer.

The appeal

The employer appealed the decision of the Arbitrator on several grounds, including the findings of credit. Specifically, the appeal submitted the Arbitrator had failed to:

  • make a finding in respect of the credit issues raised in the evidence of the worker, and

  • engage with the employer’s contentions and/or provide proper reasons when he did.

Section 354 of the Workplace Injury Management and Workers Compensation Act 1998[1]  provided that proceedings in the Commission were to be conducted with as little formality and technicality as the proper consideration of the matter permitted and the Commission was not bound by the rules of evidence. However, this needs to be balanced with the Commission’s obligation to afford parties and witnesses procedural fairness (South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16).

The Arbitrator made findings that the employer’s witness provided evidence which was dishonest; gave a false account to suit the insurance position of the appellant; and gave false and misleading evidence. The evidence had changed over time to suit the jurisdictional issues; suggesting he was not a witness of truth, and he had participated in the creation of statements that were false and misleading.

The employer’s witness was not cross examined, and the Deputy President noted this meant he was not afforded an opportunity to provide an explanation or otherwise deal with the ultimate conclusions of the Arbitrator.

The Deputy President concluded these grounds of appeal must be allowed as procedural fairness in the matter would have required the following from the Arbitrator:

‘(a) the findings of dishonesty, creating false and misleading evidence cannot be made until those allegations were put squarely to Mr King;

(b) the Arbitrator should have informed the parties that he had formed a preliminary view with respect to the evidence of Mr King;

(c) the Arbitrator should have re-convened the hearing;

(d) the parties should have been invited to make submissions as to what course the proceedings should then take in view of the articulated “preliminary view”, and

(e) the parties should have been permitted to make additional submissions addressing what findings should be made and as to the terms in which the findings should be made.’

The Deputy President was satisfied procedural fairness was denied to the employer. The employer was not provided with an opportunity to persuade the Arbitrator to another view with respect to the evidence of their witnesses. Further the worker was also deprived of the opportunity to persuade the Arbitrator he was entitled to succeed without the findings on credit of the employer’s witness being made.

The Deputy President said, ‘the error was of such magnitude that the matter should be remitted for further hearing on the central issue by a different member’.

Takeaways

This decision reinforces the importance of findings of credit and weight regarding witness evidence.

The Practice Directions (Practice Direction No 18) in the Commission provide that cross-examination of witnesses will only be permitted in limited circumstances and only if the Commission is of the view that it is necessary.

This decision suggests there is a place for cross examination of witnesses where their credibility is in issue, and the Commission’s decision maker has formed a preliminary view on the credit of a witness. 

In this matter, since the findings of credit were ‘trenchantly made, grave and of a very serious nature’, redetermination was warranted. However, where proper consideration and reasoning is provided regarding the credit of a witness, there may not be grounds for an appeal on the grounds that procedural fairness was denied to a party.

In circumstances where there are potential issues of credit, the parties should be ready to raise this at the teleconference and request leave to summon individuals to give oral evidence and/or to cross examine witnesses at the arbitration stage.  

Authors: Kate Ralph & Anna Markley

Contributing partner: Mick Franco & Robbie Elder

 

[1] This has since been repealed and replaced by section 52 of the Personal Injury Commission Act 2020 which provides that proceedings need not be conducted by formal hearing.