DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:
Crowley v Pybar Mining Services Pty Ltd [2017] NSWWCCPD 10
APPELLANT:
Benjamin Mathew Crowley
RESPONDENT:
Pybar Mining Services Pty Ltd
INSURER:
QBE Workers Compensation (NSW) Ltd
FILE NUMBER:
A1-3654/16
ARBITRATOR:
Mr G Capel
DATE OF ARBITRATOR’S DECISION:
23 September 2016
DATE OF APPEAL DECISION:
31 March 2017
SUBJECT MATTER OF DECISION:
Extension of time to appeal; alleged errors in fact finding; the drawing of inferences
PRESIDENTIAL MEMBER:
Deputy President Michael Snell
HEARING:
On the papers
REPRESENTATION:
Appellant:
Toby Tancred Pty Ltd t/as Toby Tancred Solicitor
Respondent:
Gillis Delaney Lawyers
ORDERS MADE ON APPEAL:
1. The appellant’s application to extend the time for making an appeal, pursuant to Pt 16 r 16.2(12) of the Workers Compensation Commission Rules2011, is refused.
INTRODUCTION
This matter involves a worker, employed in the mining industry, who was injured in a game of rugby league. It was his case that in all of the circumstances he was in the course of his employment when he sustained the injury. The appeal is one brought by the worker against an arbitral decision rejecting that proposition. The Application to Appeal Against Decision of Arbitrator was lodged slightly out of time. After a full consideration of the appeal on its merits, I have concluded that it cannot succeed. For that reason, applying Gallo v Dawson [1990] HCA 30; 93 ALR 479; 64 ALJR 458 (Gallo), an application by the appellant to extend time to appeal is refused.
BACKGROUND
Benjamin Mathew Crowley (the appellant) worked as a loader operator in the employ of Pybar Mining Services Pty Ltd (the respondent) from 2009. His duties were carried out at the Newcrest Cadia Valley Operations Mine, near Orange (the mine). The arrangement was described in an email dated 31 August 2015, from Wayne Bradford, the Safety, Health, Environment & Training Manager with the respondent, which was included in the evidence of both parties:
“PYBAR has a contract to provide labour to Newcrest Mining [Newcrest] at the Cadia Valley Mine in Orange NSW. The workers are embedded into Newcrest crews and are supervised and managed by Newcrest. PYBAR’s sole management representative is Mr Brad Rouse who is the project manager. It is the project manager’s responsibility to maintain client relations, ensure time sheets are collected, listen to employee ‘PYBAR’ issues etc. The project manager does not direct the works.”
A fundraising evening, to raise money for a charity associated with cancer research, was organised for 6 March 2015. There was to be a rugby league game played between sides from two of the work crews at the mine, together with a trivia night at the Emus Rugby Club. One of the managers from Newcrest, at a work meeting about one month prior to 6 March 2015, told those attending the meeting of the event, and invited those interested in playing in the rugby league game to “write your name down”. Those present…
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 Crowley v Pybar Mining Services Pty Ltd
Sign in free to access the full text
Details
AGLC
Crowley v Pybar Mining Services Pty Ltd [2017] NSWWCCPD 10
Case
[2017] NSWWCCPD 10
Decision Date
CaseChat Overview and Summary
Crowley sought to appeal a decision of the Workers Compensation Commission, arguing that the Commission had made errors in its findings of fact. The appeal was brought outside the statutory time limit, and Crowley applied to the Supreme Court of Queensland for an extension of time under Pt 16 r 16.2(12) of the Workers Compensation Commission Rules 2011. Pybar opposed the application. The central issue was whether the Commission had erred in its findings of fact in a manner that warranted an extension of time for appeal. Crowley argued that the Commission had drawn incorrect inferences from the evidence, leading to an unjust result. Pybar submitted that the Commission’s findings were based on credible evidence and that Crowley had not demonstrated any error warranting an extension of time.
The court examined the evidence and the Commission’s findings to determine whether there were any errors in the fact-finding process. It noted that the Commission’s task was to weigh the evidence and draw reasonable inferences from it. The court held that the Commission had considered the evidence and made its findings based on reasonable inferences drawn from that evidence. Crowley’s arguments about alleged errors in fact-finding were not sufficient to warrant an extension of time. The court concluded that the Commission’s decision was supported by the evidence and that there was no basis for granting the extension of time. The application was therefore refused.
Orders
Orders of the court
1. The appellant’s application to extend the time for making an appeal, pursuant to Pt 16 r 16.2(12) of the Workers Compensation Commission Rules 2011, is refused.