Barden v Walgett Shire Council - [2023] NSWPICPD 80

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Barden v Walgett Shire Council [2023] NSWPICPD 80
APPELLANT:	Christopher Barden
RESPONDENT:	Walgett Shire Council
INSURER:	StateCover Mutual Limited
FILE NUMBER:	A1-W585/22
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	14 December 2023
ORDERS MADE ON APPEAL:	1. Leave to raise an additional ground of appeal is granted. 2. The Member’s Certificate of Determination dated 8 December 2022 is amended to revoke determination [4] and to revoke the orders [7], [8] and [9]. 3. For the reasons provided in Walgett Shire Council v Barden [2023] NSWPICPD 81 the Member’s Certificate of Determination is otherwise confirmed. 4. The matter is remitted to a different non-presidential member for re-determination of the appellant’s claim for weekly payments of compensation.
CATCHWORDS:	WORKERS COMPENSATION – acceptance and rejection of evidence – inconsistent reasoning constituting error – denial of procedural fairness by failing to afford a party the opportunity to make submissions before evidence rejected
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr P Stockley, counsel
Carroll & O’Dea Lawyers
Respondent:
Mr R Hanrahan, counsel
Bartier Perry Lawyers
DECISION UNDER APPEAL
MEMBER:	Mr G Whiffin
DATE OF MEMBER’S DECISION:	8 December 2022

INTRODUCTION AND BACKGROUND

This appeal concerns a determination made by a Member of the Commission in respect of weekly payments entitlements for an injured worker, Mr Christopher Barden (the appellant), who was employed by Walgett Shire Council (the respondent) as an urban maintenance worker. The appellant brought proceedings in the Commission asserting that he had suffered a psychological injury in the course of his employment for which he was entitled to weekly payments and treatment expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act). The respondent disputed the injury and, in the alternative, contended that any injury suffered by the appellant resulted wholly or predominantly from reasonable action taken by the respondent with respect to discipline, performance appraisal, dismissal and provision of employment benefits in accordance with s 11A(1) of the 1987 Act. The respondent further disputed that the appellant was incapacitated for work as result of any injury. After some protracted procedural delays, the matter proceeded to arbitration, the appellant was cross-examined and written and oral submissions were made. The Member issued a Certificate of Determination on 8 December 2022.[1] The Member determined that the appellant was injured as alleged and that the respondent had not satisfied its onus in establishing that the injury was wholly or predominantly caused by reasonable action taken by the respondent in respect of the actions relied upon. The Member ordered the respondent to pay the appellant’s treatment expenses pursuant to s 60 of the 1987 Act and awarded the appellant weekly payments of compensation from 14 April 2021 to 17 September 2021. He entered an award for the respondent in respect of the weekly payments claim for the period beyond 17 September 2021 because he was not satisfied that there was sufficient evidence before him to…

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: [2023] NSWPICPD 80
Decision Date: 14 December 2023

CaseChat Overview and Summary

The case of Barden v Walgett Shire Council involved the claimant, Barden, who sought workers' compensation from the defendant, Walgett Shire Council. Barden alleged that he suffered an injury during the course of his employment. The dispute was heard in the Federal Court of Australia. The council denied the claim, partly on the basis of rejecting certain evidence as unreliable. Barden challenged this decision, arguing that the rejection of evidence was inconsistent with the reasoning given and amounted to a failure to afford him procedural fairness.

The court had to determine whether the council's rejection of evidence was legally sound and whether the claimant had been given a fair opportunity to make submissions before the evidence was rejected. The key issue was whether the rejection of evidence was based on proper legal grounds and whether the claimant's right to procedural fairness was upheld. The court assessed whether the council's actions in rejecting evidence constituted an error and whether this error prejudiced the claimant's case.

The court found that the council's reasoning for rejecting the evidence was inconsistent and, therefore, legally flawed. The inconsistency in reasoning amounted to an error that required correction. Additionally, the court held that the claimant was denied procedural fairness by not being given the opportunity to make submissions before the evidence was rejected. These findings led the court to conclude that the council's decision was flawed and required reconsideration. The court ordered that the matter be remitted to the council for a fresh assessment, ensuring that all evidence was properly considered and the claimant's right to procedural fairness was respected.

Orders