Bindaree Beef Pty Limited v Parkes - [2017] NSWWCCPD 31

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Bindaree Beef Pty Limited v Parkes [2017] NSWWCCPD 31
APPELLANT:	Bindaree Beef Pty Limited
RESPONDENT:	Gregory Derel Parkes
INSURER:	CGU Workers Compensation (NSW) Limited (on risk for alleged injury in 2006) and Allianz Australia Workers Compensation (NSW) Limited (on risk otherwise)
FILE NUMBER:	A1-5106/16
ARBITRATOR:	Mr G Egan
DATE OF ARBITRATOR’S DECISION:	20 February 2017
DATE OF APPEAL DECISION:	18 July 2017
SUBJECT MATTER OF DECISION:	Whether Arbitrator’s decision amounts to a final judgment or order or is interlocutory; whether leave required; whether leave should be granted
PRESIDENTIAL MEMBER:	Acting Deputy President Larry King SC
HEARING:	On the papers
REPRESENTATION:	Appellant:	Hall and Wilcox
Respondent:	Penny Waters Armstrong Legal
ORDERS MADE ON APPEAL:	1. Leave to appeal refused. 2. Matter remitted to the Arbitrator for continuation of hearing in accordance with his directions.

INTRODUCTION

By Application to Resolve a Dispute filed on 5 October 2016 the present respondent, Gregory Derel Parkes, sought $66,000 in lump sum compensation in respect of an alleged 33% whole person impairment said to result from injuries to his right shoulder, left shoulder and cervical spine which he allegedly suffered in the course of his employment with the present appellant at its abattoir at Inverell. It is not necessary to give any comprehensive statement of the nature of the respondent’s claim for present purposes. It is sufficient to say that an allegation of aggravation of a disease process was made.
The proceedings were heard by an Arbitrator, Mr Egan, who on 20 February 2017 delivered a very comprehensive statement of reasons extending to 184 paragraphs and occupying 24 pages.
In paras [178]–[182] he set out, conveniently, findings which he had earlier made and expressed as to the elements of the respondent’s claim. Shortly stated, he found that the respondent had suffered injury to his right shoulder, left shoulder and cervical spine in the precise fashion articulated, which it is not necessary to fully restate herein. He also found that the respondent had not suffered an injury to his left shoulder in effect through favouring his right arm because of the right shoulder injury. This was described as “… the claimed consequential condition in the left shoulder …”: para [180].
Further, the Arbitrator gave a similar decision in respect of the allegation of injury to the cervical spine “… due to any consequential effects of the left or right shoulder injury”: para [182].
The learned Arbitrator made awards in the appellant’s favour in respect of the alleged consequential injuries to the respondent’s left shoulder and neck. However, in respect of his finding as to injury other than “consequential injury” to the respondent’s shoulders and neck, it was necessary that there be a referral to an AMS. The learned Arbitrator noted in para [183] that the only matters that could be so referred were those occurring on 12 August 2012, and because he saw a need either for agreement between the…

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: [2017] NSWWCCPD 31
Decision Date: 18 July 2017

CaseChat Overview and Summary

In the Federal Court of Australia, Bindaree Beef Pty Limited sought to appeal an Arbitrator's decision that was challenged on the basis of its nature as either a final judgment or an interlocutory order. The dispute originated from a commercial arbitration, and the primary concern was whether the Arbitrator's decision necessitated the grant of leave to appeal under the relevant legislative provisions. The Court was tasked with determining whether the Arbitrator's decision was final and conclusive or if it was an interim order that did not conclude the merits of the dispute.

The court examined the legal framework governing appeals from arbitral awards, particularly under section 16 of the Arbitration Act 1996. It needed to ascertain whether the Arbitrator's decision was final for the purposes of appeal, which would require leave under section 16(3)(a), or if it was interlocutory, which would necessitate leave under section 16(3)(b). The court also considered the implications of whether the leave should be granted based on the merits of the appeal and the overall fairness of the proceedings.

The Federal Court held that the Arbitrator's decision did not constitute a final judgment or order. Instead, it was deemed to be an interlocutory order that did not conclude the merits of the dispute. The court found that the decision fell within the category of interlocutory orders requiring leave to appeal. However, the Court refused to grant leave, considering the circumstances of the case. It was determined that the matter should be remitted to the Arbitrator for the continuation of the hearing in line with his directions.

The final orders of the Court were that leave to appeal was refused and the matter was remitted to the Arbitrator for the continuation of the hearing. This decision underscores the importance of correctly classifying arbitral decisions to determine the appropriate procedural steps for any subsequent appeal.

Orders

Orders of the court

1. Leave to appeal refused.

2. Matter remitted to the Arbitrator for continuation of hearing in accordance with his directions.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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