| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |
| CITATION: | Blount v Penrith City Council [2020] NSWWCCPD 15 |
| APPELLANT: | Garry Blount |
| RESPONDENT: | Penrith City Council |
| INSURER: | Allianz Australia Workers Compensation (NSW) Ltd |
| FILE NUMBER: | A1-2430/19 |
| ARBITRATOR: | Mr J Wynyard |
| DATE OF ARBITRATOR’S DECISION: | 4 September 2019 |
| DATE OF APPEAL DECISION: | 13 March 2020 |
| SUBJECT MATTER OF DECISION: | Application of State Transit Authority of New South Wales v Chemler [2007] NSWCA 249; 5 DDCR 286 and associated authorities – alleged errors in fact finding regarding a psychological injury, procedural fairness |
| PRESIDENTIAL MEMBER: | Deputy President Michael Snell |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Mr D Adhikary, counsel | |
| Carroll & O’Dea Lawyers | |
| Respondent: | |
| Ms S Warren, counsel | |
| Hall & Wilcox Lawyers | |
| ORDERS MADE ON APPEAL: | 1. The Certificate of Determination dated 4 September 2019 is revoked. 2. The matter is remitted for re-determination by another Arbitrator. |
INTRODUCTION
Garry Blount (the appellant) was employed by Penrith City Council (the respondent) as a full-time carpenter for a period of approximately 18 years. He performed maintenance on council facilities.[1] He allegedly developed a psychological injury “due to various incidents relating to asbestos, public health and safety issues (i.e. erecting goal posts)”. The Application to Resolve a Dispute (ARD) pleaded injury on 4 September 2017 and 4 April 2018. The second of these was described as a “re-emergence” due to the appellant’s concern regarding public health and safety issues, which were mismanaged.[2]
[1] Appellant’s statement 17/7/18, [11]–[13], Application to Resolve a Dispute, p 2.
[2] ARD, Pt 4, p 5.
The respondent issued a number of notices denying liability. Its most recent was dated 12 March 2019.[3] That notice dealt with injury dates of both 4 September 2017 and 4 April 2018. Liability was disputed on the basis of ‘injury’, s 9A of the Workers Compensation Act 1987 (the 1987 Act), s 11A(1) of the 1987 Act (based on ‘discipline’) and whether the effects of any injury had ceased.
[3] Reply, pp 49–53.
The matter was listed for arbitration hearing on 19 July 2019. Mr Adhikary appeared for the appellant and Mr Flett for the respondent. The appellant had pleaded a weekly claim from 30 October 2017 to 19 November 2017, and from 2 April 2018 to 17 June 2018. The appellant, without objection, amended the ARD to discontinue the claim for the first of these periods, and to amend the second period to run from 5 April 2018 to 4 June 2018.[4]
[4] Blount v Penrith City Council [2019] NSWWCC 292 (Reasons), [7]–[8].
The matter proceeded on the written material, there were no applications to call oral evidence or to cross-examine. Counsel for the parties addressed and the Arbitrator reserved his decision. The Commission issued a Certificate of Determination dated 4 September 2019 accompanied by 33 pages of reasons. The Arbitrator was not satisfied the appellant had “suffered a psychiatric or psychological injury”. He found that, if he was wrong in this first finding, the respondent had established a defence…
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- Case
- [2020] NSWWCCPD 15
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the Arbitrator had made errors in fact finding regarding the nature and causation of Blount's psychological injury, and whether the proceedings before the Arbitrator had been procedurally fair. The applicant argued that the Arbitrator had erred by not properly considering the medical evidence and had failed to afford Blount procedural fairness. The respondent, Penrith City Council, defended the Arbitrator's decision and argued that the decision was correctly made and the proceedings were fair.
The court found that the Arbitrator had indeed made errors in fact finding and had not properly considered the medical evidence presented by the applicant. The court also found that the proceedings before the Arbitrator had not been procedurally fair as the applicant had not been given an adequate opportunity to present his case. The court held that these errors were significant and affected the outcome of the matter, leading to the conclusion that the determination should be quashed. The matter was then remitted for re-determination by another Arbitrator. The court did not find it necessary to address other arguments raised by the applicant.
The orders made by the court were that the Certificate of Determination dated 4 September 2019 be revoked and that the matter be remitted for re-determination by another Arbitrator. This decision highlights the importance of proper fact finding and procedural fairness in administrative law and the consequences of failing to adhere to these principles.
Orders
Orders of the court
1. The Certificate of Determination dated 4 September 2019 is revoked.
2. The matter is remitted for re-determination by another Arbitrator.
Background
Background to the litigation
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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
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