Australia: Procedural fairness may require cross-examination of claimant

Judgment date: 16 November 2010

Winter v New South Wales Police Force [2010] NSWWCCPD 121

Workers Compensation Commission¹

In Brief

• 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 procedural fairness.
• 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.

Background

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 injuries.

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.

Appeal

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:

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.

Implications

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 cross-examination.

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 procedural fairness.

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 evidence.

1 Deputy President Bill Roche
2 [2010] NSWSC 214

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