Black v Inghams Enterprises Pty Ltd - [2020] NSWWCCPD 69

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Black v Inghams Enterprises Pty Ltd [2020] NSWWCCPD 69
APPELLANT:	David Black
RESPONDENT:	Inghams Enterprises Pty Ltd
INSURER:	Self-insured
FILE NUMBER:	A1-2203/20
ARBITRATOR:	Mr M Douglas
DATE OF ARBITRATOR’S DECISION:	16 July 2020
DATE OF APPEAL DECISION:	30 November 2020
SUBJECT MATTER OF DECISION:	Failure to admit late evidence – whether error in the discretionary exercise – Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274, Hamod v State of New South Wales [2011] NSWCA 375 applied, alleged errors of fact – Whiteley Muir & Zwanenberg Ltd v Kerr (1966) 39 ALJR 505 applied
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:
Ms K Balendra, counsel
CBD Law
Respondent:
Mr P Macken, solicitor
Leigh Virtue & Associates
ORDERS MADE ON APPEAL:	1. Leave to appeal an interlocutory order is granted pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998. 2. The appellant’s application to adduce further evidence on the appeal is refused. 3. The Arbitrator’s Certificate of Determination dated 16 July 2020 is confirmed.

INTRODUCTION AND BACKGROUND

Mr David Black (the appellant) commenced employment with Inghams Enterprises Pty Ltd (the respondent) as a process worker and cleaner on or about 16 November 2016. The appellant alleged that, in a frank incident on the night shift on 25 and 26 March 2019, he suffered a lumbar spine injury. He ceased work following the shift and made a claim for weekly compensation and treatment expenses. The respondent denied liability for the injury.
The appellant had previously suffered a non-work related injury to his lumbar spine in 2002.
The appellant filed proceedings in the Commission, alleging that, as a result of the injury in the early hours of 26 March 2019, and as a consequence of the heavy nature of his work, he suffered an aggravation, acceleration, exacerbation or deterioration of his pre-existing condition. The respondent maintained the dispute in relation to the frank incident and disputed liability for what was described as the “nature and conditions” of the appellant’s employment.
The matter proceeded to arbitration on 2 July 2020. At the commencement of the arbitration, the appellant sought to tender an Application to Admit Late Documents (AALD) which enclosed a supplementary statement from the appellant dated 1 July 2020. The application was opposed by the respondent and the Arbitrator declined to admit the document.
The Arbitrator issued a Certificate of Determination on 16 July 2020 in which he found that the appellant had suffered an aggravation of his pre-existing lumbar disease as a result of the heavy nature of the appellant’s duties, but that he was not satisfied that the appellant’s employment was the main contributing factor to the aggravation, as required by s 4(b)(ii) of the Workers Compensation Act 1987 (the 1987 Act).
The appellant appeals the decision of the Arbitrator to refuse admission of the appellant’s supplementary statement, as well as the final…

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: [2020] NSWWCCPD 69
Decision Date: 30 November 2020

CaseChat Overview and Summary

In the matter of Black v Inghams Enterprises Pty Ltd, the dispute arose from the appellant's attempt to adduce late evidence in the context of a workers' compensation claim. The case was heard in the New South Wales Court of Appeal. The appellant sought to introduce evidence that was not available at the time of the original hearing, which the respondent argued was prejudicial and should not be considered. The appeal was focused on whether the trial judge had erred in not admitting the late evidence.

The primary legal issue the court needed to address was whether the trial judge's decision to reject the late evidence was an error in the exercise of discretion. The court referenced the decisions in Micallef v ICI Australia Operations Pty Ltd and Hamod v State of New South Wales, which established criteria for admitting late evidence. The court also examined whether there were alleged errors of fact that could have influenced the trial judge's decision, drawing on the principles set out in Whiteley Muir & Zwanenberg Ltd v Kerr. The appellant contended that the evidence was critical and would have altered the outcome of the case, while the respondent maintained that the late introduction of evidence was unjust and could disrupt the fairness of the proceedings.

The court found that the trial judge had not erred in declining to admit the late evidence. The evidence presented by the appellant did not meet the stringent criteria set out in the relevant case law for late admissions. The court emphasised that the trial judge had broad discretion in managing the admission of evidence and had exercised that discretion appropriately. The court also determined that there were no significant errors of fact that warranted a reversal of the trial judge's decision. Consequently, the appeal against the interlocutory order was dismissed, and the Arbitrator’s Certificate of Determination was upheld.

The court granted leave to appeal the interlocutory order under the relevant statute, but denied the appellant's application to adduce further evidence on the appeal. The Arbitrator’s Certificate of Determination, dated 16 July 2020, was confirmed, maintaining the original decision.

Orders

Orders of the court

1. Leave to appeal an interlocutory order is granted pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998.

2. The appellant’s application to adduce further evidence on the appeal is refused.

3. The Arbitrator’s Certificate of Determination dated 16 July 2020 is confirmed.

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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