Winter v New South Wales Police Force 
Workers Compensation Commission1
A party to proceedings in the Workers Compensation Commission
(WCC) requires leave in order to cross-examine a witness.
Where allegations are made that a witness has been dishonest in
relation to a significant aspect of their evidence leave to
cross-examine that witness should be granted as a matter of
Similarly in CARS matters where there is a significant
inconsistency to which a claimant has not replied, it would be
appropriate that the claimant be cross-examined on that issue.
The claimant was a Police Officer who submitted a claim for
compensation under the Workers Compensation Act 1987 in
respect of a psychological injury arising from various incidents of
violence which he witnessed and unsatisfactory treatment at work.
The insurer denied liability for the claim substantially on the
basis that the claimant's work was not the predominant cause of
The claim was set down for arbitration hearing in the WCC on 23
April 2010. On that occasion the arbitrator allowed only brief
cross-examination of the claimant. Ultimately the arbitrator found
in favour of the insurer in respect of the application, dismissing
the claim. In her reasons the arbitrator made adverse findings in
relation to the claimant's credibility.
The claimant appealed the determination on the basis that he was
denied procedural fairness in that he was afforded little
opportunity to reply to the issues of credibility raised by the
insurer and accepted by the arbitrator. Proceedings in the WCC are
less formal than court proceedings and cross-examination is only
allowed by leave. However, the WCC found that, if it was to be
suggested that the claimant had been dishonest in respect of the
cause of his injuries, then:
"as a matter of procedural fairness, that assertion had
to be put to him (either in cross-examination or in some other way)
because it was not a matter that was obvious from the documentary
The WCC found that the arbitrator's determination had been
infected by error due to a denial of procedural fairness. The WCC
also found error in the arbitrator's lack of sufficient reasons
for preferring other evidence over that of the claimant. As the WCC
was not satisfied that the error could not possibly have affected
the arbitrator's ultimate determination, the claim was referred
for a new hearing before a different arbitrator.
The decision highlights the importance of allowing parties
procedural fairness if adverse findings on credibility are to be
made in relation to a party's witness. If the issue of
credibility of a witness (particularly of the claimant) is not
raised in documentary evidence, then it would be appropriate to
allow the witness to address any inconsistencies in
The decision is also relevant to Motor Accident Compensation
Act 1999 claims before CARS, where there is similarly no
automatic right of cross-examination of witnesses, as per
Zurich Australia Insurance Limited v Motor Accidents Authority
of NSW and ORS2. In that case, the claimant
provided pre-recorded evidence and did not attend the assessment
conference due to her agoraphobia. The insurer objected to the
admission of the recorded evidence but consented to the admission
of a transcript of the interview. The insurer argued they had been
denied procedural fairness when the recording was ultimately
admitted. The Supreme Court found that there had been no denial of
The instant decision is relevant to CARS matters where notice is
given of a significant issue in relation to a claimant's
credibility and the claimant seeks to give evidence otherwise than
in person. Insurers should be wary to raise the issue at an early
stage and identify why it is necessary for the claimant to be
present to reply to questions regarding inconsistencies in their
1 Deputy President Bill Roche
2  NSWSC 214
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