Andrew Bryce v Department of Corrective Services [2009] NSWCA 188
HEARING DATE(S):
26 June 2009
JUDGMENT DATE:
26 June 2009
JUDGMENT OF:
Allsop P at 1; Beazley JA at 13; Giles JA at 14
EX TEMPORE JUDGMENT DATE:
26 June 2009
DECISION:
1. Dispense with the need for filing any written application for leave to appeal. 2. Grant leave to appeal. 3. Dismiss the appeal. 4. Order the appellant to pay the costs of the respondent on the application for leave and the appeal.
1 ALLSOP P: This matter was originally constituted as an appeal from orders made by the Deputy President of the Workers’ Compensation Commission upholding the appeal of the employer from a decision of an arbitrator granting an award in favour of the worker.
2 The appeal to this court was at all times an appeal in point of law under the Workplace Injury ManagementandWorkers Compensation Act 1998 (NSW), s 353(1). One aspect of that appeal has now been abandoned. It had been argued that the Deputy President erred in point of law by embarking upon a review of the arbitrator’s decision before finding error in the arbitrator’s approach. That proposition was contrary to a number of Court of Appeal decisions and dicta, and in particular the decision of the Chief Justice in State Transit Authority v Chemler [2007] NSWCA 249, with whose judgment Basten JA and Bryson AJA agreed. Thus the proper approach governing the appeal by way of review under s 352 of the 1998 Act as at the date of the filing of the appeal was to be found in Chemler. On 6 April 2009 in another decision of this Court, Sapina v Coles Myer [2009] NSWCA 71, there was a comprehensive review of all the authorities in this Court dealing with the matter including Chemler and reiterated the position. This point has now been abandoned.
3 The only remaining point was a complaint that the Deputy President erred in point of law in granting an extension of time in which to file an application for appeal by way of review from the arbitrator’s decision. The employer was…
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
AGLC
Bryce v Department of Corrective Services [2009] NSWCA 188
Case
[2009] NSWCA 188
Decision Date
CaseChat Overview and Summary
The appeal concerned a dispute between the appellant, Bryce, and the respondent, the Department of Corrective Services. The case was heard in the Court of Appeal of New South Wales.
The primary legal issue before the Court of Appeal was whether the appellant had established a sufficient basis to challenge the decision of the primary judge. This involved considering whether the primary judge had erred in law or fact in their original determination of the matter.
The Court of Appeal ultimately dismissed the appeal. While the specific reasons for the dismissal are not detailed in the provided text, the court granted leave to appeal, indicating that the appellant had presented an arguable case. However, after considering the merits, the court found no grounds to overturn the primary judge's decision. The court ordered the appellant to pay the costs of the respondent for both the application for leave to appeal and the appeal itself.
Orders
Orders of the court
1. Dispense with the need for filing any written application for leave to appeal. 2. Grant leave to appeal. 3. Dismiss the appeal. 4. Order the appellant to pay the costs of the respondent on the application for leave and the appeal.