By Shabnam Thompson, Lawyer
As humans, we can agree that our memory sometimes fails us (just think about how many times we forget where we parked our car). Psychological studies have also shown that we have a tendency to be better at recalling what we perceive as a negative event, e.g. placing a ‘negativity bias’ on the recollection of memories (Boals et al. 2014).
This raises the question in the legal realm as to whether teleconferences should be recorded to ensure an accurate recollection of the events, particularly in circumstances where the outcome of such dealings may have negative consequences for those involved.
The absence of a recording of a teleconference was an issue in the recent workers compensation matter of Lee v University of New South Wales  NSWWCC 184 (“Lee”) where the Arbitrator recused herself from the proceedings on the basis that the lack of a transcript resulted in an inability to decide whether a reasonable person would reasonably apprehend or suspect that she had prejudged the case (see Lee at ).
In Lee, the respondent arranged an Independent Medical Examination (“IME”) for the applicant to attend. The applicant objected to the IME on the basis that the respondent did not comply with the relevant provisions of the Work Injury Management and Workers Compensation Act 1998 or the Workers Compensation Guidelines in relation to the proposed examination. The applicant ultimately commenced proceedings in the Workers Compensation Commission (“the Commission”) seeking an order that she was not required to attend the proposed IME.
The matter proceeded to a telephone conference on 7 April 2020 where the Arbitrator heard oral submissions from the applicant, however directed the respondent to provide written submissions by close of business on 9 April 2020 due to the respondent not being in a position to make submissions at that time as it did not have access to late documents filed by the applicant.
Following the teleconference, the respondent requested a transcript of the conference, but was advised that it had not been recorded. The respondent lodged an Application to Appeal Against Decision of Arbitrator on the basis that the lack of a transcript made it “essentially impossible to comply with the order” made on 7 April 2020. The application was rejected (as there was no decision to be appealed), however the Arbitrator issued a further direction advising that she would be determining the matter “on the papers” and requested the parties file written submissions.
In the respondent’s submissions, it requested the Arbitrator recuse herself from further hearing of the matter due to apprehended bias. Amongst other things, the respondent submitted that the Arbitrator indicated at the teleconference that she had already determined the issues subject to the proceedings in a recent matter and had stated words to the effect that, “insurers should not flagrantly ignore the requirements of the Guidelines”. The respondent further submitted that the Arbitrator had already determined the issues in a manner adverse to the respondent, and that a reasonable bystander would form the view that the matter may not be fairly and reasonably dealt with so far as the respondent’s position was concerned (see Lee at ).
At  of the decision in Lee, the Arbitrator stated that the absence of a transcript of the telephone conference on 7 April 2020 created a significant problem and that it was not possible for any party to the proceedings to identify precisely what was said that might lead her to decide the case other than on its legal and factual merits.
In coming to her decision to recuse herself, the Arbitrator stated at  that:
“This results in me being in a position where in order to determine this application I would be forced to rely on any recollections that I have of what took place in the telephone conference on 7 April 2020. This is not satisfactory and it is not appropriate, in my view, for an arbitrator to become a witness in a matter…”
The Arbitrator also stated that a failure to recuse herself would delay the final determination of the matter and create problems in the Presidential Division because of prior instances where missing or inadequate transcripts resulted in matters being remitted for re-determination rather than being simply resolved at Presidential level (see Lee at ). The Arbitrator went on to say that the matter was not one where the lack of a transcript could be accommodated by evidence as to what was said in the teleconference on 7 April 2020.
The Arbitrator concluded at  that the lack of a transcript of the telephone conference on 7 April 2020 resulted in an inability to decide whether a reasonable person may reasonably apprehend or suspect that she had prejudged the case and that, “It is essential that an arbitrator be seen to act fairly, impartially, independently, and free from bias throughout the entire dispute process”. Therefore, the Arbitrator granted the respondent’s application for her to recuse herself and ordered the matter be reallocated to another Arbitrator for determination.
It is noteworthy that the applicant’s solicitor present at the teleconference of 7 April 2020 filed an affidavit that he had no recollection of what occurred at the teleconference, but had made assumptions based on what his response would have been to certain applications being made. Had the applicant’s solicitor recalled the events at the teleconference, perhaps the outcome of Lee may have been different.
In any event, there is no doubt that a recording of the teleconference in Lee would have assisted in determining the issue of bias as asserted by the respondent in that matter. However, the question as to whether all teleconferences should be recorded to ensure an accurate recollection of events must be balanced against the interests of justice in ensuring the timely resolution of matters and the commercial factors associated with same.
The implementation of a recording system for teleconferences may be costly and may also increase technical difficulties such as ensuring private conversations held by the parties and their clients are not recorded, as well as the possibility of privacy/consent issues. On the other hand, the implementation of such a system may reduce situations such as that in Lee where the initial matters in dispute are delayed and decision makers have to recuse themselves due an inability to decide whether a reasonable person may reasonably apprehend or suspect that they have prejudged the case (see Lee at ).
Accordingly, depending on the incidence rate of situations such as that which transpired in Lee, a recording system or a requirement for teleconferences to be recorded in some way or another is something the Commission may possibly look to implementing in the future.
There is no doubt that individuals tend to leave a situation with different understandings of what took place and so, in the absence of teleconferences being recorded, it is essential that proper file notes be taken to ensure that an individual’s recollection of events is as accurate as possible.
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