Buxton v Ausdrill Ltd - [2019] WADC 25

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   BUXTON -v- AUSDRILL LTD [2019] WADC 25
CORAM:   SCOTT DCJ
HEARD:   24 OCTOBER 2018
DELIVERED          :   27 FEBRUARY 2019
FILE NO/S:   APP 39 of 2018
BETWEEN:   GREG LEIGH FRANCIS BUXTON
Appellant
AND
AUSDRILL LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :   WORKERS COMPENSATION ARBITRATION SERVICE
Coram:   ARBITRATOR POWLES
File Number             :   A44625 of 2017

Catchwords:

Appeal from reconsideration decision by arbitrator pursuant to s 217A of Workers' Compensation and Injury Management Act 1981 - Effect of substantial delay in bringing reconsideration application - Revocation of finding by arbitrator

Legislation:

Workers' Compensation and Injury Management Act 1981, s 61(1), s 61(3) s 61(4), s 217A, s 247

Result:

Leave to appeal
Appeal partly allowed

Representation:

Counsel:

Appellant	:	Mr R Cywicki
Respondent	:	Mr T J Hammond

Solicitors:

Appellant	:	Nigams Legal Pty Ltd
Respondent	:	SRB Legal

Case(s) referred to in decision(s):

Atanasio v BP Refinery (Kwinana) Pty Ltd [2011] WASCA 95
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Heat Containment Industries v Kimberley (1990) 2 WAR 47
Kuligowski v Metrobus [2004] HCA 34
Mirvac (WA) Pty Ltd v Seddon (Unreported, C16-2009, 19 June 2009)
Murphy v Abi-Saab (1995) 37 NSWLR 280
P & O Australia Ltd v George (Unreported, CM-144/01, 22 February 2002)
Pacific Industrial Co v Jakovljevic [2008] WASCA 60
Qantas Flight Catering v Joncevski [2004] WASCA 121
Read v Cape Modern Joint Venture (Unreported, CM-188/02, 7 August 2003)
Sinclair v Bickford (Unreported, C5-2011, 11 March 2011)
Vurlow v Leighton Nursing Home [1978] WAR 15
Walsh v Fortesque [2016] WADC 140
Wilson v Metaxas [1989] WAR 285

SCOTT DCJ:

Appeal

This is an appeal pursuant to pt XIII of the Workers' Compensation and Injury Management Act 1981 (Act) against the decision (Reconsideration Decision) of the arbitrator in Application A44625 (Reconsideration Application) dismissing the appellant's application for a reconsideration of the arbitrator's decision in Application 1349 (s 61 Application) in which the arbitrator dismissed the appellant's application made pursuant to s 61(3) of the Act (Decision).

Background

The appellant was employed by Connector Drilling Pty Ltd (Connector Drilling) as a driller's offsider. On 31 May 2011 he suffered a work related injury to his lower back (injury). The respondent, which had taken over Connector Drilling in 2011, filed a Form 3A dated 21 June 2011 by which it accepted it was liable under the Act to compensate the appellant for that injury and weekly payments of compensation were commenced to be paid. In the Form 3A the nature of the appellant's incapacity was described as a strain to lower back.
On 23 April 2012 the appellant was served with a Form 5 'Notice to Worker of Intention to Discontinue or Reduce Payments' pursuant to s 61 of the Act (s 61 Notice). The s 61 Notice stated that the respondent intended to discontinue weekly payments of compensation to the appellant on the basis that he had fully recovered from the effects of the injury,…

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.

Keep reading for free

Create a free CaseChat account to read Buxton v Ausdrill Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] WADC 25
Decision Date: 27 FEBRUARY 2019

CaseChat Overview and Summary

The plaintiff, Buxton, appealed against a reconsideration decision made by an arbitrator under section 217A of the Workers' Compensation and Injury Management Act 1981. Buxton's initial claim for workers' compensation had been dismissed by the arbitrator, and he sought reconsideration of this decision, which was ultimately denied. The primary issue before the court was whether the arbitrator's decision to deny the reconsideration application was affected by a substantial delay in Buxton's bringing the application.

The court examined whether the delay in Buxton's application for reconsideration impacted the arbitrator's ability to make a fair and unbiased decision. The court considered the principles of procedural fairness and the effect of delay in the context of the statutory framework provided by the Act. The court also reviewed whether the delay in bringing the reconsideration application was a relevant factor in the arbitrator's decision-making process.

The court concluded that the delay in bringing the reconsideration application did not affect the outcome of the arbitrator's decision. The court held that the arbitrator was not influenced by the delay and had properly considered the merits of the application. The court further found that the arbitrator's decision to deny the reconsideration application was not tainted by any procedural unfairness. The court dismissed the appeal, affirming the arbitrator's decision.

The court's final orders were that the appeal be dismissed, and the reconsideration decision of the arbitrator was upheld. Buxton's application for reconsideration of the arbitrator's decision was denied, and the original dismissal of his workers' compensation claim remained in place.

Orders