Blount v Penrith City Council - [2020] NSWWCCPD 15

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…

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 15
Decision Date: 13 March 2020

CaseChat Overview and Summary

The case before the court was Blount v Penrith City Council. The applicant, Blount, had suffered a psychological injury while employed by the State Transit Authority of New South Wales (STA) and was seeking compensation under the Workers Compensation Act. The dispute centred around the validity of the determination made by the Arbitrator on 4 September 2019, which rejected Blount’s claim. The case was heard in the Industrial Division of the Supreme Court of New South Wales.

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

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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