Darren John McCarthy v Patrick Stevedores No. 1 Pty Ltd - [2011] NSWCA 311

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Darren John McCarthy v Patrick Stevedores No. 1 Pty Ltd [2011] NSWCA 311
Hearing dates: 5 September 2011
Decision date: 27 September 2011
Before: Basten JA at [1]
Meagher JA at [11]
Handley AJA at [51]
Decision:
Appeal dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: WORKERS COMPENSATION - appeal against decision of Deputy President - limited to decisions in point of law - whether there was a misapplication of s 40 of the Workers Compensation Act 1987 - whether there was evidence to support the Deputy President's finding - whether there was a failure to give adequate reasons - whether there was a denial of procedural fairness in making a determination on the papers - no error in point of law.
Legislation Cited: Workplace Injury Management and Workers Compensation Act 1998
Workers Compensation Act 1987
Workers Compensation Act 1926
Cases Cited: Australian Wheat Board v Pantaleo (1984) 3 NSWLR 530
Ayoub v AMP Bank Ltd [2011] NSWCA 263
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Cage Developments Pty Ltd trading as Monaro Mix Specified Concrete v Schubert (1981) 2 NSWLR 227
Fletcher International Exports Pty Ltd v Lott [2010] NSWCA 63
Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11
Hill v Bryant (1974) 2 NSWLR 423
JC Ludowici & Son Ltd v Cutri (1992) 26 NSWLR 580
Johnston v Commissioner for Railways (1973) 128 CLR 632
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Mitchell v Central West Health Service [1997] 14 NSWCCR 526
Singh v Taj (Sydney) Pty Ltd [2006] NSWCA 330
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16
State Transit Authority of New South Wales v Chemler [2007] NSWCA 249
Category: Principal judgment
Parties: Darren John McCarthy (Appellant)
Patrick Stevedores No. 1 Pty Ltd (Respondent)
Representation: Counsel:
B McManamey (Appellant)
L King SC; M Batten (Respondent)
Solicitors:
Turner Freeman (Appellant)
David Veasey (Respondent)

File Number(s): CA 2010/328617
Decision under appeal

Citation:

McCarthy v Patrick Stevedores No. 1 Pty Limited [2010] NSWWCCPD 96

Date of Decision:

2010-09-08 00:00:00

Before:

Deputy President Roche

File Number(s):

WCC 2010/2085

Judgment

BASTEN JA : The appellant, Darren John McCarthy, is aggrieved by a decision of Deputy President Roche of the Workers Compensation Commission, in point of law. He has exercised his right of appeal pursuant to s 353 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("the Workplace Injury Act "). The appeal concerns a decision not to…

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: [2011] NSWCA 311
Decision Date: 27 September 2011

CaseChat Overview and Summary

In the matter of *Darren John McCarthy v Patrick Stevedores No. 1 Pty Ltd*, the appellant, Mr. McCarthy, appealed to the Court of Appeal of New South Wales against a decision of a Deputy President of the Workers Compensation Commission. The appeal was limited to questions of law.

The primary legal issues before the Court of Appeal were whether the Deputy President had misapplied section 40 of the *Workers Compensation Act 1987* (NSW), whether there was sufficient evidence to support the Deputy President's findings, whether the Deputy President had failed to provide adequate reasons for the decision, and whether there had been a denial of procedural fairness by making a determination on the papers.

The Court of Appeal found no error of law in the Deputy President's decision. The court concluded that the Deputy President had not misapplied section 40 of the Act, that there was evidence to support the findings made, that adequate reasons were provided, and that the determination on the papers did not constitute a denial of procedural fairness.

Consequently, the appeal was dismissed with costs.

Orders

Orders of the court

Appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Darren John McCarthy v Patrick Stevedores No. 1 Pty Ltd [2011] NSWCA 311
Hearing dates:	5 September 2011
Decision date:	27 September 2011
Before:	Basten JA at [1] Meagher JA at [11] Handley AJA at [51]
Decision:	Appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	WORKERS COMPENSATION - appeal against decision of Deputy President - limited to decisions in point of law - whether there was a misapplication of s 40 of the Workers Compensation Act 1987 - whether there was evidence to support the Deputy President's finding - whether there was a failure to give adequate reasons - whether there was a denial of procedural fairness in making a determination on the papers - no error in point of law.
Legislation Cited:	Workplace Injury Management and Workers Compensation Act 1998 Workers Compensation Act 1987 Workers Compensation Act 1926
Cases Cited:	Australian Wheat Board v Pantaleo (1984) 3 NSWLR 530 Ayoub v AMP Bank Ltd [2011] NSWCA 263 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Cage Developments Pty Ltd trading as Monaro Mix Specified Concrete v Schubert (1981) 2 NSWLR 227 Fletcher International Exports Pty Ltd v Lott [2010] NSWCA 63 Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11 Hill v Bryant (1974) 2 NSWLR 423 JC Ludowici & Son Ltd v Cutri (1992) 26 NSWLR 580 Johnston v Commissioner for Railways (1973) 128 CLR 632 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 Mitchell v Central West Health Service [1997] 14 NSWCCR 526 Singh v Taj (Sydney) Pty Ltd [2006] NSWCA 330 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16 State Transit Authority of New South Wales v Chemler [2007] NSWCA 249
Category:	Principal judgment
Parties:	Darren John McCarthy (Appellant) Patrick Stevedores No. 1 Pty Ltd (Respondent)
Representation:	Counsel: B McManamey (Appellant) L King SC; M Batten (Respondent) Solicitors: Turner Freeman (Appellant) David Veasey (Respondent)
File Number(s):	CA 2010/328617
Decision under appeal	Citation: McCarthy v Patrick Stevedores No. 1 Pty Limited [2010] NSWWCCPD 96 Date of Decision: 2010-09-08 00:00:00 Before: Deputy President Roche File Number(s): WCC 2010/2085