Australian Traineeship System v Mabbett - [2011] NSWWCCPD 1

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Australian Traineeship System v Mabbett [2011] NSWWCCPD 1
APPELLANT:		Australian Traineeship System
RESPONDENT:		Ivan Mabbett
INSURER:		GIO General Limited
FILE NUMBER:		A1-4086/10
ARBITRATOR:	Ms A Nicholl
DATE OF ARBITRATOR’S DECISION:		27 September 2010
DATE OF APPEAL DECISION:		4 January 2011
SUBJECT MATTER OF DECISION:		Leave to appeal out of time; Pt 16.2 r 12 of the Workers Compensation Commission Rules 2010
PRESIDENTIAL MEMBER:		Acting President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Moray & Agnew
Respondent:	Firths
ORDERS MADE ON APPEAL:		Leave to appeal is refused. The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.

BACKGROUND

On 9 July 2001, the respondent worker, Mr Mabbett, injured his back in the course of his employment with the appellant employer, Australian Traineeship System. The employer’s insurer, GIO General Limited (GIO), made voluntary payments of weekly compensation.
In proceedings in the former Compensation Court of NSW in 2003, the employer agreed to pay Mr Mabbett lump sum compensation in the sum of $9,000 in respect of a 15 per cent permanent impairment of his back, $3,750 in respect of a five per cent loss of efficient use of his left leg at or above the knee, and $7,250 in respect of pain and suffering.
In 2009, Mr Mabbett decided to return to his country of birth, New Zealand. To ensure that he received compensation payments on his return to New Zealand, his solicitors wrote several letters to the insurer. After the insurer failed to respond to the first three letters, Moray & Agnew, solicitors instructed by GIO, wrote on 5 August 2009 recommending that Mr Mabbett make “the appropriate application pursuant to s 53 of the 1987 Act”.
Mr Mabbett filed an Application to Resolve a Dispute in the Commission on 21 May 2010. Under “Claim Details”, the following appears:
“We note that the Insurer has been making weekly payments of compensation in the amount of approximately $470.70 gross per week. However, the insurer has advised that payments will discontinue once the worker ceases to reside in Australia.
We therefore seek a declaration under s 53 of the Act that the incapacity for work resulting from the injury is likely to be of a permanent nature.”
The employer attached its Reply to an Application to Admit Late Documents filed on 16 June 2010. Under “Matters in Dispute”, the employer ticked “yes” to “confirmed as per exchange of offers attached to the Application”. It identified no other issues in dispute.
The Commission listed the matter for conciliation and arbitration on 23 August 2010. The matter could not be resolved and the Arbitrator heard lengthy submissions from counsel for each side. In her Statement of Reasons (Reasons) issued on 27 September 2010, she identified the issues for determination to be:
“1. Does the Commission have jurisdiction to determine the issues before it, given the operation of section 289 of…

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.

Keep reading for free

Create a free CaseChat account to read Australian Traineeship System v Mabbett and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] NSWWCCPD 1
Decision Date: 4 January 2011

CaseChat Overview and Summary

In the case of Australian Traineeship System v Mabbett, the appellant, Australian Traineeship System, sought leave to appeal against a decision of the Workers Compensation Commission of Queensland. The respondent, Mr Mabbett, was an employee of the appellant who sustained an injury in the course of his employment and had lodged a claim for workers' compensation. The Commission found in favour of Mr Mabbett and the appellant sought leave to appeal this decision. The application for leave to appeal was brought under Part 16.2, rule 12 of the Workers Compensation Commission Rules 2010. The court was required to determine whether the appellant's application for leave to appeal out of time was justified.

The appellant argued that it had not been aware of the decision of the Commission until several weeks after it was made, and that this delay was not due to any fault or neglect on its part. The court noted that the appellant had not provided any evidence to support this claim, and that the Commission's records showed that the decision had been sent to the appellant's registered address. The court held that the appellant had failed to establish any exceptional circumstances that would justify an extension of the time for lodging an appeal. The court also noted that the appellant had not demonstrated any prejudice that would result from the refusal of leave to appeal.

The court refused the appellant's application for leave to appeal. The court found that the appellant had not satisfied the requirements of Part 16.2, rule 12 of the Workers Compensation Commission Rules 2010. The court ordered that the appellant was to pay the respondent's costs of the appeal, as agreed or assessed. This decision highlights the importance of timely and diligent legal processes, and the need for parties to take reasonable steps to ensure that they are aware of relevant decisions and deadlines.

Orders

Orders of the court

Leave to appeal is refused.

The appellant employer is to pay the respondent worker’s costs of the appeal, as agreed or assessed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.