Ballina Shire Council v Knapp - [2019] NSWCA 146

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Ballina Shire Council v Knapp [2019] NSWCA 146
Hearing dates: 7 June 2019
Date of orders: 07 June 2019
Decision date: 20 June 2019
Before: Basten JA at [1];
Macfarlan JA at [6];
Payne JA at [7]
Decision:
1.   Allow the appeal;

2.    Set aside the orders of Deputy President Wood made on 27 August 2018;

3.    In lieu thereof,

(i)   allow the appeal from the determination of the Arbitrator;
(ii)   set aside the Certificate of Determination made on 11 April 2018; and
(iii)   in place thereof make an award in favour of the respondent to the application to the Commission;
4.    Dismiss the respondent’s cross-appeal of 30 January 2019.
Catchwords:
WORKERS COMPENSATION – appeal against decision of Workers Compensation Commission –validity of Deputy President of WCC’s re-determination of the Arbitrator’s decision – s 352(5) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) and Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344; 5 DDCR 1 considered

WORKERS COMPENSATION – appeal against decision of Workers Compensation Commission – only question raised before the Deputy President of WCC was whether the respondent was entitled to compensation arising from a journey claim within the meaning of s 10 of the Workers Compensation Act – ground conceded by the appellant
WORKERS COMPENSATION – cross-appeal – whether Deputy President of WCC erred in point of law – whether evidence the respondent was speeding – whether there was evidence the respondent was holding his mobile telephone - “no evidence” ground does not apply - Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282 discussed
Legislation Cited: Workers Compensation Act 1987 (NSW), ss 4, 10
Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 352, 353
Cases Cited: Amaba v Booth [2010] NSWCA 344
Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344; 5 DDCR 1
Comcare v PVYW (2013) 250 CLR 246; [2013] HCA 41
Davis v Mobil Oil Australia Ltd (1988) 12 NSWLR 10; 4 NSWCCR 8
Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473; [1992] HCA 21
Kassim v Busways Blacktown Pty Ltd (2003) 25 NSWCCR 450; [2003] NSWCC 6
Kostas v HIA Insurance Services Pty Ltd t/as Home Owners Warranty (2010) 241 CLR 390; [2010] HCA 32
Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282
Tarry v Warringah Shire Council (1974) WCR (NSW) 1
Texts Cited: M Aronson, M Groves and G Weeks (eds.), Judicial Review of Administrative Action and Government Liability (6th ed, 2017, Thomson Reuters)
Category: Principal judgment
Parties: Ballina Shire Council (Appellant / Cross-Respondent)
Joshua Benjamin Knapp (Respondent / Cross-Appellant)
Representation:
Counsel:
D J Hooke SC; S L Flett (Appellant / Cross-Respondent)
J M Morris SC; M Hammond; R A Coffey (Respondent / Cross-Appellant)
Solicitors:
Haille Paine (Appellant / Cross-Respondent)
Bourke Love Lawyers (Respondent / Cross-Appellant)

File Number(s): 2018/289656
Publication restriction: None
Decision under appeal

Court or tribunal:

The Workers Compensation Commission of New South…

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: [2019] NSWCA 146
Decision Date: 20 June 2019

CaseChat Overview and Summary

Ballina Shire Council (the appellant) appealed to the Court of Appeal of New South Wales against a decision of the Workers Compensation Commission (WCC). The dispute concerned the validity of a re-determination made by a Deputy President of the WCC concerning an Arbitrator's decision. The primary question before the Deputy President, and subsequently before the Court of Appeal, was whether the respondent was entitled to compensation arising from a journey claim under section 10 of the *Workers Compensation Act*. This specific ground was conceded by the appellant before the Deputy President.

The legal issues before the Court of Appeal were whether the Deputy President erred in point of law in their re-determination. Specifically, the appellant argued that there was no evidence that the respondent was not speeding and no evidence that the respondent was not holding his mobile telephone. These arguments were framed as "no evidence" grounds.

The Court of Appeal considered the application of section 352(5) of the *Workplace Injury Management and Workers Compensation Act 1998* (NSW) and the principles established in *Chubb Security Australia Pty Ltd v Trevarrow*. The Court found that the "no evidence" ground, as argued by the appellant, did not apply in this instance. The Court referenced *Onesteel Reinforcing Pty Ltd v Sutton* in its analysis. The Court determined that the Deputy President had not erred in law.

The appeal was dismissed. The Court of Appeal made an award, interim award, order, determination, ruling, and direction.

Orders

Orders of the court

includes an award, interim award, order, determination, ruling and direction.

28.

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.

Medium Neutral Citation:	Ballina Shire Council v Knapp [2019] NSWCA 146
Hearing dates:	7 June 2019
Date of orders:	07 June 2019
Decision date:	20 June 2019
Before:	Basten JA at [1]; Macfarlan JA at [6]; Payne JA at [7]
Decision:	1. Allow the appeal; 2. Set aside the orders of Deputy President Wood made on 27 August 2018; 3. In lieu thereof, (i) allow the appeal from the determination of the Arbitrator; (ii) set aside the Certificate of Determination made on 11 April 2018; and (iii) in place thereof make an award in favour of the respondent to the application to the Commission; 4. Dismiss the respondent’s cross-appeal of 30 January 2019.
Catchwords:	WORKERS COMPENSATION – appeal against decision of Workers Compensation Commission –validity of Deputy President of WCC’s re-determination of the Arbitrator’s decision – s 352(5) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) and Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344; 5 DDCR 1 considered WORKERS COMPENSATION – appeal against decision of Workers Compensation Commission – only question raised before the Deputy President of WCC was whether the respondent was entitled to compensation arising from a journey claim within the meaning of s 10 of the Workers Compensation Act – ground conceded by the appellant WORKERS COMPENSATION – cross-appeal – whether Deputy President of WCC erred in point of law – whether evidence the respondent was speeding – whether there was evidence the respondent was holding his mobile telephone - “no evidence” ground does not apply - Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282 discussed
Legislation Cited:	Workers Compensation Act 1987 (NSW), ss 4, 10 Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 352, 353
Cases Cited:	Amaba v Booth [2010] NSWCA 344 Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344; 5 DDCR 1 Comcare v PVYW (2013) 250 CLR 246; [2013] HCA 41 Davis v Mobil Oil Australia Ltd (1988) 12 NSWLR 10; 4 NSWCCR 8 Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473; [1992] HCA 21 Kassim v Busways Blacktown Pty Ltd (2003) 25 NSWCCR 450; [2003] NSWCC 6 Kostas v HIA Insurance Services Pty Ltd t/as Home Owners Warranty (2010) 241 CLR 390; [2010] HCA 32 Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282 Tarry v Warringah Shire Council (1974) WCR (NSW) 1
Texts Cited:	M Aronson, M Groves and G Weeks (eds.), Judicial Review of Administrative Action and Government Liability (6th ed, 2017, Thomson Reuters)
Category:	Principal judgment
Parties:	Ballina Shire Council (Appellant / Cross-Respondent) Joshua Benjamin Knapp (Respondent / Cross-Appellant)
Representation:	Counsel: D J Hooke SC; S L Flett (Appellant / Cross-Respondent) J M Morris SC; M Hammond; R A Coffey (Respondent / Cross-Appellant) Solicitors: Haille Paine (Appellant / Cross-Respondent) Bourke Love Lawyers (Respondent / Cross-Appellant)
File Number(s):	2018/289656
Publication restriction:	None
Decision under appeal	Court or tribunal: The Workers Compensation Commission of New South…