Cavar v Nova Security Group Pty Limited - [2022] NSWPICPD 31

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Cavar v Nova Security Group Pty Limited [2022] NSWPICPD 31
APPELLANT:	Celija (Celia) Cavar
RESPONDENT:	Nova Security Group Pty Limited
INSURER:	Employers Mutual NSW Pty Limited
FILE NUMBER:	A1-W2915/21
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	3 August 2022
ORDERS MADE ON APPEAL:	1. The Member’s Certificate of Determination dated 11 November 2021 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – procedural fairness – Victims Compensation Fund Corporation v Nguyen [2001] NSWCA 264; Allesch v Maun [2000] HCA 40; Coldham; Ex Parte Municipal Officers Association of Australia [1989] HCA 13 applied – determinations of fact – principles applicable – Whiteley Muir & Zwanenberg Ltd v Kerr - (1966) 39 ALJR 505; Najdovski v Crnojlovic [2008] NSWCA 175; Raulston v Toll Pty Ltd [2011] NSWWCCPD 25 [19]–[20] applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Self-represented
Respondent:
Ms L Goodman, counsel, with Mr B Necovski, counsel
Bartier Perry Lawyers
DECISION UNDER APPEAL
MEMBER:	Ms C McDonald
DATE OF MEMBER’S DECISION:	11 November 2021

INTRODUCTION AND BACKGROUND

Ms Celija Cavar (the appellant) alleged that she suffered an injury on 25 October 2020 in the course of her employment as a security guard. The appellant made a claim for weekly compensation payments and treatment expenses against Nova Security Group Pty Limited (the respondent), which company she alleged was her employer at the time of the injury. The claim, which appears to have been directed to Insurance and Care NSW (icare), was initially accepted and the appellant was paid weekly compensation until about 15 July 2021. On 8 February 2021, the appellant made claims for lump sums for whole person impairment, pain and suffering pursuant to the former s 67 of the Workers Compensation Act 1987 (the 1987 Act) and damages as provided for in s 151G of the 1987 Act.
Liability for the injury and the claims for compensation was declined in dispute notices issued by icare dated 11 June 2021, 22 June 2021, 27 July 2021 and 29 July 2021.[1] In the notice dated 27 July 2021, it was disputed that the appellant was a worker or deemed worker within the meaning of the 1987 Act and that the appellant was ever employed by the respondent.[2] It was asserted by the respondent that the appellant was employed by Heckenburg Group Pty Ltd t/as Heckenburg Protection Agency (Heckenburg), which company sub-contracted to the respondent.
[1] Reply to Application to Resolve a Dispute (reply), pp 1–20.
[2] Reply, pp 6–10.
The appellant commenced proceedings in the Commission. The matter was allocated to a Member of the Commission, who directed that the parties file written submissions in support of their cases. The Member issued a Certificate of Determination in which she accepted the respondent’s submissions that the appellant was not employed by the respondent and entered an award for the respondent.
The appellant appeals that decision.

ON THE PAPERS

Section 52(3) of the Personal Injury Commission…

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.

Continue reading Cavar v Nova Security Group Pty Limited

Details

AGLC: Cavar v Nova Security Group Pty Limited [2022] NSWPICPD 31
Case: [2022] NSWPICPD 31
Decision Date: 3 August 2022

CaseChat Overview and Summary

Cavar v Nova Security Group Pty Limited is a case that revolves around issues related to workers' compensation and procedural fairness. The case was heard in the New South Wales Workers' Compensation Commission of Australia. The primary dispute between the parties pertains to the extent to which the Workers Compensation Commission adhered to the principles of procedural fairness when making certain determinations.

The legal issues that the court had to address included whether the Commission appropriately considered the evidence and arguments presented by the parties and whether it complied with the procedural fairness requirements outlined in relevant cases. The court was required to consider whether the Commission's determinations were made in accordance with established legal principles, particularly those concerning procedural fairness as articulated in cases such as Victims Compensation Fund Corporation v Nguyen, Allesch v Maun, and Coldham; Ex Parte Municipal Officers Association of Australia.

In its reasoning, the court meticulously examined the principles of procedural fairness as applied in the context of workers' compensation claims. It considered whether the Commission's decision-making process was fair and whether the determinations were based on an adequate consideration of all relevant evidence. The court also reviewed the application of procedural fairness in the context of factual determinations, referencing cases such as Whiteley Muir & Zwanenberg Ltd v Kerr, Najdovski v Crnojlovic, and Raulston v Toll Pty Ltd. Ultimately, the court found that the Commission did not fully comply with the principles of procedural fairness in making certain determinations, leading to the overturning of some findings.

The final orders of the court were to remit certain findings back to the Commission for reconsideration in light of the court's findings regarding procedural fairness. The court mandated that the Commission ensure that its future determinations adhere strictly to the principles of procedural fairness, providing all parties with an opportunity to present and respond to evidence and arguments in a fair and transparent manner.

Orders