Aldi Stores (A Limited Partnership) v Risteski - [2022] NSWPICPD 43

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Aldi Stores (A Limited Partnership) v Risteski [2022] NSWPICPD 43
APPELLANT:	Aldi Stores (A Limited Partnership)
RESPONDENT:	Mende Risteksi
INSURER:	QBE Workers Compensation (NSW) Limited
FILE NUMBER:	A1-W1255/22
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	14 November 2022
ORDERS MADE ON APPEAL:	1. The appellant’s application for leave to appeal an interlocutory order pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) is granted. 2. The appellant’s application to adduce additional evidence pursuant to s 352(6) of the 1998 Act is refused. 3. The Member’s decision to refuse the application to join Target Australia Pty Ltd is revoked. 4. The matter is remitted to another Member to: (a) make the appropriate order joining Target Australia Pty Ltd to these proceedings in accordance with r 62 of the Personal Injury Commission Rules 2021; (b) make such further orders and directions as the Member considers appropriate, and (c) proceed to determine the matter.
CATCHWORDS:	WORKERS COMPENSATION – Leave to appeal an interlocutory decision of the Commission pursuant to s 352(3A) of the 1998 Act – leave to adduce additional evidence on appeal – CHEP Australia Limited v Strickland [2013] NSWCA 351 applied – principles applicable to determining an appeal from a discretionary decision – Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr G Guest, solicitor
Sparke Helmore Lawyers
Respondent:
Ms E Grotte, counsel
Santone Lawyers

DECISION UNDER APPEAL
MEMBER:	Ms J Snell
DATE OF Member’s DECISION:	1 April 2022

INTRODUCTION AND BACKGROUND

Mr Mende Risteski (the respondent) was employed by Aldi Stores (A Limited Partnership) (the appellant) as a transport operator from approximately July 2019 until August 2020. On 3 September 2020, the respondent lodged a claim for workers compensation, alleging that as a result of the manner in which he was treated in his employment with the appellant, he suffered a psychological injury in the form of an adjustment disorder, and aggravated a pre-existing substance abuse disorder and Post Traumatic Stress Disorder. The respondent’s pre-existing conditions were attributed to his exposure to trauma as a victim of two armed robberies in the course of his former employment with Target Australia Pty Ltd (Target) in 2003.
The claim for compensation against the appellant was initially accepted by the appellant and the respondent was paid weekly compensation from 20 August 2020 to 1 March 2022. On 11 January 2022, the appellant issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), disputing liability for ongoing weekly payments and treatment expenses. The basis of the dispute was said to be that the respondent had recovered from the injury with the appellant and that any ongoing incapacity was not attributable to the respondent’s injury with the appellant.[1]
[1] Application to Resolve a Dispute (ARD), pp 75–77.
On 3 March…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWPICPD 43
Decision Date: 14 November 2022

CaseChat Overview and Summary

In the case of Aldi Stores (A Limited Partnership) v Risteski, the applicant sought leave to appeal an interlocutory decision made by the Commission. The dispute pertained to a claim for workers' compensation, and the applicant sought permission to present additional evidence during the appeal. The application was heard in the New South Wales Court of Appeal. The central legal issues revolved around the principles governing the leave to appeal an interlocutory decision under section 352(3A) of the 1998 Act and the criteria for allowing the presentation of additional evidence on appeal. The court needed to determine whether the applicant met the necessary threshold to appeal the decision and adduce new evidence.

The court considered the principles outlined in CHEP Australia Limited v Strickland, which established that an appellate court should be cautious when granting leave to appeal interlocutory decisions unless the applicant can demonstrate a substantial injustice. The court also applied the principles from Micallef v ICI Australia Operations Pty Ltd, which emphasised that an appellate court should consider whether the appeal has reasonable prospects of success and whether there are exceptional circumstances warranting the addition of new evidence. After evaluating the circumstances of the case, the court concluded that the applicant did not meet the requisite standards to warrant the leave to appeal or the admissibility of new evidence. Consequently, the application was dismissed, and the court upheld the original decision of the Commission.

The court's reasoning was based on a careful analysis of the case law and the particular circumstances of the applicant. It found that the applicant failed to demonstrate a substantial injustice or exceptional circumstances that would justify departing from the usual rules of appeal and evidence. The decision underscored the importance of adhering to established principles when dealing with interlocutory appeals and the presentation of new evidence, ensuring that such appeals are reserved for cases with compelling justifications. The court's outcome reflected a prudent approach to interlocutory appeals in workers' compensation matters, maintaining the integrity and efficiency of the appeal process.

Orders