James Ricketson
58 Braidwood Road
Goulburn 2580
0488543555
jamesricketson@gmail.com
Judge Gerard Phillips
President, Personal Injuries Commission
c/o PIC Media Unit.
media@pi.nsw.gov.au
8th. August 2023
Dear Judge Phillips
re W5025/22 XXXXX Special Events Pty Ltd v Workers Compensation Nominal Insurer (icare)
I have been a friend of Ms. L. for 40 years. I am a filmmaker and journalist. Last year I commenced filming a documentary about Ms. L's life. When I became aware of the matter before the Commission I realised that I could not leave out this particular chapter in her life. In order to be as well informed as possible I read some documents relating to it.
I made contact with icare in hopes of obtaining from the insurer answers to some questions. (see correspondence, attached)
icare did not wish to answer my initial questions and suggested, in June this year, that I make contact with the Personal Injury Commission (PIC) in order to obtain answers. I did not feel the need to do so at the time.
After I had read more documents I wondered why the PIC was allowing icare to proceed with this matter. I sought again to obtain answers to my new questions from icare. As is apparent in my correspondence, Mr. Harding has, firstly, declined answer my questions, and subsequently ignored them.
Please accept this letter, sent electronically, as a request that the PIC
provide me with answers to a variety of questions, after it has handed down its findings in this matter.
In the investigative piece I am writing I will redact Mr. M's name and anything in it that might serve to identify him.
In the interests of transparency, I am copying this to Mr. Richard Harding, CEO of icare.
yours sincerely
James Ricketson
XXXX
Judge Gerard Phillips
President, Personal Injuries Commission
c/o PIC Media Unit.
media@pi.nsw.gov.au
11 th. August 2023
Dear Judge Phillips
re W5025/22 XXXXX Special Events Pty Ltd v Workers Compensation Nominal Insurer (icare)
Further to my letter of 8th August.
The PIC Media Unit has responded to my letter as follows:
Dear Mr Ricketson,
Thank you for your enquiry.
The Personal Injury Commission is an independent statutory tribunal and is unable to comment on the details of individual matters or release documents related to specific dispute applications.
All decisions determined by the Commission are published on the legal research databases of AustLII, BarNet Jade and Lexis Nexis. In exceptional circumstances decisions may be de-identified or redacted before publication.
Kind regards,
Georgie
Georgie Wells
Manager, Communications and Events
Personal Injury Commission
I learn from the PIC website, that ...
... the new Commission is not bound by the Rules of Evidence, and is to act according to equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms.
Leaving aside the specifics of this particular case, am I correct in concluding, in the case of alleged 'bullying', that an insurance claimant is under no obligation, as far as the PIC is concerned, to provide evidence that he or she has been bullied?
yours sincerely
James Ricketson
cc. Richard Harding, CEO icare
XXXXX
15 th. August 2023
Dear Judge Phillips
Further to my letters of 8th. and 11th August.
The PIC Media Unit has responded to my most recent letter to you as follows:
Dear Mr Ricketson,
Thank you for your further correspondence.
As previously advised, the Personal Injury Commission is an independent statutory tribunal. Our decision makers are highly experienced experts in their field. Their decisions are published in the public domain and can be the subject of an internal appeal process. The Commission also has a detailed resource library on its website.
The Commission is unable to provide legal advice. Previous determinations made by the Commission in relation to psychological injuries caused by the actions of employers are available on the legal research databases mentioned in our earlier response.
Kind regards,
Georgie
Georgie Wells
Manager, Communications and Events
Personal Injury Commission
(1) This response from your media unit does not answer my simple question in relation to evidence of bullying.
(2) The PIC 'decision makers' may well be ' highly experienced experts in their field', but this does not, surely, absolve them from their obligation to be transparent and accountable in the decisions they make? The PIC is, after all, a tax-payer funded body.
(3) Both icare and the PIC know that there is no evidence of 'bullying' and, it seems, that no evidence is required for an employer to be found guilty of it. This is mystifying to me. It is this question I am trying to have clarified in my letters to you and Mr. Richard Harding, CEO of icare - to whom I am copying this letter.
(4) That the PIC decision in this matter will be 'published in the public domain' raises the question: 'Will CM's name be published?' If so, would it be ethical for me to publish it also, given the well-documented mental health problems Mr. M suffers from? Might not publication of his name have an adverse effect on his mental health? He is, after all, a man who has attempted to take his own life.
(5) Regardless of the decision the PIC makes vis a vis publication of Mr. M' name, I will not publish it.
(6) If the PIC decides, out of concern for Mr. M' mental health, not to publish his name, will this not be an admission that the anonymous person who initiated the legal process the PIC has adjudicated, suffers from mental illness? Given that there is no evidence of bullying on Ms L's part, and no evidence that XXXXX failed to pay him, (and indeed overpaid him), will not this, in conjunction with the claimant's having threatened to kill Ms. L, raise legitimate questions as regards the wisdom of icare in prosecuting this case, and the PIC deciding to run it?
(7) If Mr. M' name is redacted, will Ms. L's also?
I will ask my 11th. August question again, of both yourself and of Mr. Richard Harding:
"Can allegations of 'bullying' be made against an employer without the employee making the allegations being required to provide evidence that it has occurred?"
You will appreciate that I am professionally obliged, wearing my journalist's hat, to put such questions to you and Mr. Harding and provide you with an opportunity to answer them if you so choose.
yours sincerely
James Ricketson
cc Mr. Richard Harding, CEO icare
15th August email from Glenn Capel
Good afternoon Mr Ricketson
My name is Glenn Capel and I am the Division Head of the Workers Compensation of the Personal Injury Commission.
Your email dated 15 August 2023 and earlier correspondence have been referred to me for review and comment.
I note that you are a close friend of Ms. L. and you seek answers to certain questions regarding a dispute involving her business that is currently being litigated in the Personal Injury Commission.
The Commission has previously provided responses to the questions raised in your letter and emails.
You were informed that the Personal Injury Commission is an independent statutory tribunal and cannot comment on the details of matters or release documents. It is not a tax payer funded tribunal as suggested by you.
You were advised that the Commission is unable to provide legal advice. You were invited to review previously reported decisions relating to psychological injuries caused by the actions of employers. This would enable you to understand the nature of evidence that is required in matters in the Commission.
You are not a party in the proceedings. It is not appropriate for the Commission to comment about your views regarding the evidence or lack of evidence of bullying in Ms L’s matter. If this is a live issue for determination, it will be a matter for the Member with conduct of the proceedings based on the evidence filed and the submissions of the legal representatives.
Your most recent letter cavils with the Commission’s responses. I can understand that you might have some difficulty understanding the intricacies of workers compensation law in New South Wales. The law is complex and is difficult for Members, barristers and lawyers, let alone a lay person, to comprehend.
The Members of the Commission are required to adhere to the Member Code of Conduct. This identifies their obligations and can be reviewed on the Commission’s website.
The Commission has a statutory obligation to publish decisions. You were previously advised that the names of parties can be de-identified and publication of decisions can be withheld on application of the parties in exceptional circumstances. The ill health of an injured worker is one such circumstance. If the decision is eventually published, you will be able to read it.
Not all uninsured parties have the opportunity to retain lawyers, and many appear without legal representation. Ms. L. has a very experienced lawyer appearing on her behalf. I would suggest, with respect, that you speak with him with Ms L’s permission and hopefully he can provide answers to some of your questions.
I hope that my response helps you understand why the Commission cannot provide you with the answers that you seek. Please note that the Commission will not engage any further with you.
Regards
Glenn Capel
Division Head
Workers Compensation Division
Personal Injury Commission
e Glenn.Capel@pi.nsw.gov.au
XXXXX
15 th. August 2023 (second letter)
Dear Judge Phillips
Further to my letters of 8th, 11th and 15th August.
Glenn Capel, Division Head, Workers Compensation Division, has responded to my correspondence on your behalf.
I wear three hats here:
(1) Ms.L. is a friend of 40 years standing.
(2) I am a filmmaker, and it was in this capacity that I first became interested in this matter.
(3) I am a journalist.
With 50 years of experience working in the 4th Estate I am capable of approaching these three different roles in the manner appropriate to each.
My question regarding 'evidence of bullying' is a generic one. Leaving aside the question of 'bullying' in Ms. L's case I am primarily interested, this afternoon, in trying to understand the concept of 'workplace bullying' such that I can express it in words that the general public (for whom I write) will understand.
Mr.Capel writes:
"You were informed that the Personal Injury Commission is an independent statutory tribunal and cannot comment on the details of matters or release documents."
Response: I have not asked the PIC to comment on this matter and nor have I requested that the PIC release any documents.
Mr.Capel writes:
"It is not a tax payer funded tribunal as suggested by you."
Response: My presumption in this regard is based on what appears on the PIC website:
"The Commission is an independent statutory tribunal within the New South Wales justice system, committed to providing a transparent and independent dispute resolution service."
If the Commission is not funded by New South Wales tax-payers, could you please tell me from whence its funding comes?
Mr.Capel writes:
"You were advised that the Commission is unable to provide legal advice."
Response: I have not sought any legal advice.
Mr.Capel writes:
"You were invited to review previously reported decisions relating to psychological injuries caused by the actions of employers."
Response: For a journalist seeking to obtain an answer to a simple 'bullying' question, this would be like akin to finding a needle in a haystack. I am not in a position to spend many hours, and perhaps days searching through cases that may or may not illuminate for me what does and what does not constitute 'bullying' in the view of the PIC. Perhaps you could help me by indicating which cases you have in mind that might serve to educate me in this matter?
Mr.Capel writes:
"You are not a party in the proceedings. It is not appropriate for the Commission to comment about your views regarding the evidence or lack of evidence of bullying in Ms. L’s matter."
Response: I have not asked you, Judge, to comment on my views. Mr Capel is setting up a 'Straw Man' argument here. I draw your attention, again, to an extract to be found on the PIC website:
"... the new Commission is not bound by the Rules of Evidence, and is to act according to equity, good conscience, and the substantial merits of the case without regard to technicalities or legal forms.
I am confused. Could you please clarify for readers what role 'evidence' plays in Members making a determination regarding 'bullying'? Are Members required only to act in accordance with 'equity, good conscience and the merits of the case', regardless of evidence?
Mr.Capel writes:
"... it will be a matter for the Member with conduct of the proceedings based on the evidence filed and the submissions of the legal representatives."
Response: Will whatever evidence the Members rely on in making their decision be available for scrutiny on the PIC website after the decision has been handed down?
Mr.Capel writes:
"The law is complex and is difficult for Members, barristers and lawyers, let alone a lay person, to comprehend."
Response: This may well be the case, but surely such complexity applies to many matters before courts and tribunals of one kind or another? Given the PIC's commitment to precept of transparency it must be possible for the PIC to provide a broad outline, at least, of what constitutes 'bullying' in the workplace?
In just twenty seconds of online research I come upon the following:
Workplace bullying is repeated and unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety.
Surely, the PIC must work in accordance with a definition of 'repeated' and 'unreasonable' that can be understood by members of the public and, in this case, by a journalist simply trying to understand what constitutes 'bullying'? If 'repeated' and 'unreasonable' are just vague notions that even barristers and lawyers struggle to understand, isn't the PIC leaving the door wide open for scamsters to defraud insurers? Especially if all the 'evidence' they need to make an allegation of bullying is to find a doctor who, after one therapeutic session conducted online, will declare that the person alleging that he or she has been bullied, has been so badly damaged, psychologically, that s/he is unable to work?
Regarding Mr. Capel's suggestion that I speak with Ms. L's lawyer, I have done so on several occasions and am well aware of his thoughts and feelings about this matter.
Mr.Capel writes:
"Please note that the Commission will not engage any further with you.
Response: It is, of course, your prerogative to answer not questions. Readers can and will arrive at whatever conclusions they wish to regarding the PIC's commitment to transparency and accountability. As for myself, half a century of dealing with bureaucracies of one kind or another in many a government has prepared me for this response. The first step is to refuse to answer questions. The second is use a word like 'engage' to create the illusion, for the record, that questions have been answered and that the person who continues to ask them is being unreasonable. The third step is to simply ignore further questions in hopes that the person asking them will give up.
Finally, Mr.Capel writes:
"The Commission has previously provided responses to the questions raised in your letter and emails."
Response: A response is not the same as an answer, Judge Phillips. My question remains unanswered:
"Can allegations of 'bullying' be made against an employer without the employee making the allegations being required to provide evidence that it has occurred?"
I will add one more question:
"Does an employer have any right of redress if s/he is intimidated by an employee with threats to go to the media, and a body such as the PIC if s/he does not submit to the employees demands?"
At the risk of belabouring the point, I trust that you appreciate my professional obligation to ask questions regarding 'evidence' and 'bullying' and give you and the PIC an opportunity to provide answers.
yours sincerely
James Ricketson
cc. Mr. Richard Harding, CEO icare
XXXXX
19 th. September 2023
Dear Judge Phillips
Further to my letters of 8th, 11th and 15th. August - none of which you have acknowledged receipt of.
I write this follow up letter not as a journalist or filmmaker but as a friend of Ms. L.
This matter, dragging on as it has for four years, has led to the closure of the kitchen in which Ms. L. has, for 40 years, created the cakes for which she has an international reputation. Her income has dropped to almost zero. This matter is a very personal and quite dispiriting tragedy for an artist whose medium is cake sculpture. It has caused her many months of emotional distress and physical illness as she awaits a decision from the PIC.
Has this legal exercise been worth the money and effort both icare and the PIC have expended this past four years? Has it been worth destroying the career of one employer in pursuit of justice for the crimes against an employee that it is alleged, by icare, the employer is guilty of?
If CM has lied to icare and the PIC about the various other jobs he held whilst blaming Ms. L. for his financial problems back in 2019, if he has defrauded both Centrelink and the Australian Tax Office, will the PIC be publicly critical of icare for failing to practice due diligence prior to commencing legal proceedings against Ms. L.? Will the PIC issue an apology to Ms. L. for not insisting, at least three years ago, that icare practice due diligence before pursuing this matter as it has?
If the PIC determines that Ms. L. has no case to answer, will icare be asked to recompense Ms. L. for lost income? Will icare be setting in place mechanisms to prevent this happening to other employers in the future?
Will the PIC make adjustments to its modus operandi such that businesses like XXXXX are not destroyed by employees with malicious intentions; by employees who suffer from mental illnesses; by scammers who must be well aware of how vulnerable workers compensation schemes such as icare are to those who wish to exploit their procedural flaws?
I again seek an interview once this matter reaches its procedural conclusion.
yours sincerely
James Ricketson
cc. Mr. Richard Harding, CEO icare
XXXXX
27th. October 2023
Dear Judge Phillips
re PIC reference: COR-04504-2023
Further to my previous letters to you.
On 25th Oct. I received a letter from Marianne Christmann, Principal Registrar, in response to my letter to Premier Minns, dated 3rd. October.
I have been working in the media for 50 years and am familiar with the work of spin doctors whose job it is to create the illusion that a matter has been dealt with appropriately, in the hope that a problem can be made to magically disappear. Such is Ms. Christmann's letter.
I have attached three letters that speak for themselves:
(1) Dr. Thomas Oldtree Clark, 20th. October
(2) Ms. Kerry Haddock, 24th. October
(3) Dr. Brad Mc Kay, 27th. October
I trust that the PIC will respond appropriately to the many legitimate journalist's questions implicit in all three letters.
yours sincerely
James Ricketson
cc. Mr. Richard Harding, CEO icare
The Hon. Christopher Minns, Premier of NSW
