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Dunphy v Boney

Dunphy v Boney

Case [2010] NSWWCCPD 111 28 October 2010

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WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION: Dunphy v Boney [2010] NSWWCCPD 111

APPELLANT: M J & D A Dunphy

RESPONDENT: Michael Dean Boney

INSURER: CGU Workers Compensation (NSW) Limited

FILE NUMBER: A1-002074/10

ARBITRATOR: Mr D Minus

DATE OF ARBITRATOR’S DECISION: 24 June 2010

DATE OF APPEAL DECISION: 28 October 2010

SUBJECT MATTER OF DECISION: Discretion to admit late documents; application of pt 10 r 10.3 of the Workers Compensation Commission Rules 2010, and interlocutory orders.

PRESIDENTIAL MEMBER: President Judge Keating

HEARING: On the Papers

REPRESENTATION: Appellant: Sparke Helmore Lawyers

Respondent: McCabe Partners Lawyers

ORDERS MADE ON APPEAL:
1. The decision of the Arbitrator dated 24 June 2010 is revoked and the matter is remitted to another Arbitrator for determination afresh.

2. The appellant employer to pay the worker’s costs of the arbitration hearing of 28 May 2010.

3. No order as to costs of the appeal.

BACKGROUND TO THE APPEAL
1.Mr Michael Dean Boney, aged 37, was employed by M J and D A Dunphy (the appellant) to undertake certain shearing work on their property, “Willawillingbah”, in January 2005.
2.Mr Boney alleged that, on 26 January 2005, he was on a journey from his place of residence to the appellant’s property, which was situated 27 km from his home at Goodooga to commence the shearing work.
3.Mr Boney alleged that, as he was leaving his house, he attempted to jump a metal mesh fence on the boundary of his property, when he scraped his right ankle on the wire netting, and was injured.
4.On 26 August 2009, over four and a half years later, Mr Boney’s solicitors made a claim on his behalf for weekly benefits from 27 January 2005 to date and continuing. He also claimed lump sum benefits under s 66 totalling $26,750, and compensation for pain and suffering under s 67 in the sum of $30,000. Mr Boney also sought payment of his medical expenses.
5.On 17 November 2009, the appellant’s insurer, CGU Workers Compensation (NSW) Limited, declined Mr Boney’s claim. CGU issued a notice under s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The reasons given for disputing the claim were stated in very broad terms. However, it is clear that the insurer disputed that Mr Boney worked for the appellant on 26 January 2005. It also disputed that the injury was sustained “on a compensable journey” pursuant to s 10 of the Workers Compensation Act 1987 (the 1987 Act).
6.The dispute concerning Mr Boney’s entitlements led to the registration of an Application to Resolve a Dispute with the Commission on 16 March 2010.
7.The matter was listed for an arbitration hearing before an Arbitrator on Friday 28 May 2010 in Dubbo. At the hearing, the appellant submitted that 26 January 2005 was the Australia Day public holiday and Mr Boney was not employed to work that day. There was considerable argument at the hearing concerning the admission…

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 Dunphy v Boney

Details

AGLC: Dunphy v Boney [2010] NSWWCCPD 111
Case: [2010] NSWWCCPD 111
Decision Date: 28 October 2010

CaseChat Overview and Summary

Dunphy v Boney involved the Workers Compensation Commission of Queensland, with the worker, Mr. Boney, appealing a decision made by the Arbitrator against his claim for workers' compensation. The dispute centred on the admissibility of late-submitted documents and the application of specific rules governing the submission of evidence in the Commission. The case was heard and determined in the Queensland Court of Appeal.

The legal issues in this appeal were primarily concerned with the discretion of the Arbitrator under Part 10 Rule 10.3 of the Workers Compensation Commission Rules 2010 to admit late documents and whether the Arbitrator exercised this discretion appropriately. The appeal also questioned whether the Arbitrator's decision to exclude the late documents was so unreasonable as to constitute a failure to exercise the relevant discretion, warranting judicial review.

The Court of Appeal held that the Arbitrator had failed to exercise the discretion afforded by Rule 10.3 appropriately and had not given proper consideration to the factors relevant to the decision to admit or exclude the late documents. The Court concluded that the Arbitrator's decision to exclude the documents was unreasonable and thus constituted a failure to exercise the discretion correctly. Consequently, the decision of the Arbitrator was revoked, and the matter was remitted to another Arbitrator for a fresh determination. The Court also ordered the employer to pay the worker’s costs of the arbitration hearing, but made no order regarding the costs of the appeal.

Orders

Orders of the court

1. The decision of the Arbitrator dated 24 June 2010 is revoked and the matter is remitted to another Arbitrator for determination afresh.

2. The appellant employer to pay the worker’s costs of the arbitration hearing of 28 May 2010.

3. No order as to costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

Dunphy v Boney [2010] NSWWCCPD 111

Most Recent Citation

Waldron v Agrimac International Pty Limited [2016] NSWWCCPD 35

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…sit Authority of New South Wales (No 2) [2007] NSWWCCPD 109; Arquero v DJ and T Denning Pty Ltd t/as Capital Coast Steel [2007] NSWWCCPD 126. [3] [2010] NSWWCCPD 111 ( Boney ). [4] [2007] NSWWCCPD 196 ( Maricic ).…
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Citation 2 (Para 2)

…e the appellant’s opportunity to seek determination of the claim, on the available evidence, on its merits. [17] See, for example, Dunphy v Boney [2010] NSWWCCPD 111.…
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Citation 3 (Para 5)

…nally, if a relevant ruling is interlocutory, questions with respect to it may be raised on appeal once a final determination is made: Dunphy v Boney [2010] NSWWCCPD 111 at [88]–[90]. The final determination in the current matter, at least in respect of the claim for weekly compensation, was made on 28 April 2016 (see…
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Citation 4 (Para 3)

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Cases Cited

Sepic v Linfox Transport Group Pty Limited [2007] NSWWCCPD 171
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…n interlocutory order, in that such a decision does not finally dispose of rights of the parties ( Sepic v Linfox Transport Group Pty Ltd [2007] NSWWCCPD 171 ( Sepic ) at [26]–[31]). 85.I reject the submission for these reasons: 86.First, Sepic concerned the effect of an Arbitrator’s decision to dismiss part of a work…
Whitehead v Kassagrove Pty Limited t/as Moorebank Hotel [2007] NSWWCCPD 154
Citation 2 (Para 28)

…l determination has been made ( Sydney Institute of Technology – NSW TAFE Commission v Fleming [2007] NSWWCCPD 97; Whitehead v Kassagrove Pty Ltd [2007] NSWWCCPD 154 at [28]–[29]).…
Nelson Bay Pest Service Pty Limited v Morrison [2007] NSWWCCPD 135
Citation 3

…nto evidence if the Commission considered it “in the interests of justice to do so”. 68.In Nelson Bay Pest Service Pty Limited v Morrison [2007] NSWWCCPD 135, Acting Deputy President Snell, in dealing with a similar situation where the appellant employer was seeking an indulgence to rely on certain documents, cited Io…
Menzies v CRCI Pty Ltd [2007] NSWCA 118
Citation 4 (Para 27)

…78.In Menzies & Anor v CRCI Pty Ltd [2007] NSWCA 118, Hodgson JA at [27] said: “It was put that, in accordance with JL Holdings , the court should grant an adjournment unless prejudice was caused to the other side that could not be met by an adjournment and costs, and that any prejudice in this case could have been…
Sydney Institute of Technology - NSW TAFE Commission v Fleming [2007] NSWWCCPD 97
Citation 5

…h respect to it may be raised on appeal once a final determination has been made ( Sydney Institute of Technology – NSW TAFE Commission v Fleming [2007] NSWWCCPD 97; Whitehead v Kassagrove Pty Ltd [2007] NSWWCCPD 154 at [28]–[29]).…
State of New South Wales v Bujdoso [2007] NSWCA 44
Citation 6 (Para 29)

…y. 87.The distinction between a “final” and an interlocutory order was considered in State of New South Wales v Bujdoso [2007] NSWCA 44 at [29] and [30], where Ipp JA said: “There is a long line of cases in the High Court of Australia which have held that, in regard to disputes as to whether a judgment is interloc…
Coles Myer Limited v Tabassum [2005] NSWWCCPD 16
Citation 7

…The Dunphys’ submissions 44.The appellant relies on the decision of Deputy President Byron in Coles Myer Ltd v Tabassum [2005] NSWWCCPD 16, and described the following factors appropriate to the current appeal: (a) whether there was an acceptable explanation for the delay; (b) whether or not the refusal will cause a…
Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344
Citation 8

…eferable, where an appeal has been upheld, that the Presidential Member finally determine the matter ( Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344), that would perpetuate the very prejudice Mr Boney’s counsel protested before the arbitrator. 92.In those circumstances, it is appropriate that the ma…
Iovanescu v McDermott [2004] NSWCA 106
Citation 9

…with a similar situation where the appellant employer was seeking an indulgence to rely on certain documents, cited Iovanescu v McDermott [2004] NSWCA 106 ( Iovanescu ). In that matter, the NSW Court of Appeal dealt with an application pursuant to the District Court Rules 1973 to seek extension of time in which to…
Holt v Wynter [2000] NSWCA 143
Citation 10

…upon the exercise of discretion in a claim for extension of time: Salido v Nominal Defendant (1993) 32 NSWLR 524 at 533, 539 and 541; Holt v Wynter [2000] NSWCA 143; (2000) 49 NSWLR 128 at 136. That is because it goes to the question of whether it is just and fair to grant the indulgence sought, namely an extension…
Queensland v JL holdings Pty Ltd [1997] HCA 1
Citation 11

…as part of the case management armoury of the court. He then set out various passages from State of Queensland & another v J L Holdings Pty Limited [1997] HCA 1; (1997) 189 CLR 146 which are well known and which need not be reproduced, but which in essence state that case management is not an end to itself but…
Sanofi v Parke Davis Pty Ltd [1982] HCA 9
Citation 12

…alia Limited [No 1] [1981] HCA 20; (1981) 147 CLR 246 at 248 per Gibbs CJ; Sanofi v Park Davis Pty Limited [No 1] [1982] HCA 9; (1982) 149 CLR 147.”…
Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20
Citation 13

…rne Authority v Anshun Pty Limited No 1 (1980) 147 CLR 35; Carr v Finance Corporation of Australia Limited [No 1] [1981] HCA 20; (1981) 147 CLR 246 at 248 per Gibbs CJ; Sanofi v Park Davis Pty Limited [No 1] [1982] HCA 9; (1982) 149 CLR 147.”…
Port of Melbourne Authority v Anshun Pty Ltd [1980] HCA 41
Citation 14

…5) 180 CLR 213 at 225 per Gibbs J (as his Honour then was); Port of Melbourne Authority v Anshun Pty Limited No 1 (1980) 147 CLR 35; Carr v Finance Corporation of Australia Limited [No 1] [1981] HCA 20; (1981) 147 CLR 246 at 248 per Gibbs CJ; Sanofi v Park Davis Pty Limited [No 1] [1982] HCA 9; (1982) 149 CLR 147.”…
Licul v Corney [1976] HCA 6
Citation 15

…parties’: Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423 at 442 to 445 per Windeyer J; Licul v Corney [1976] HCA 6; (1975) 180 CLR 213 at 225 per Gibbs J (as his Honour then was); Port of Melbourne Authority v Anshun Pty Limited No 1 (1980) 147 CLR 35; Carr v Finance Corporation of Australia Limited…
Hall v Nominal Defendant [1966] HCA 36
Citation 16

…whether ‘the judgment or order, as made, finally disposes of the rights of the parties’: Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423 at 442 to 445 per Windeyer J; Licul v Corney [1976] HCA 6; (1975) 180 CLR 213 at 225 per Gibbs J (as his Honour then was); Port of Melbourne Authority v Anshun Pty L…
Azzopardi v Tasman UEB Industries Ltd 2002 SC13437
Citation 17

…e during the course of the arbitration hearing may involve errors of law which may be the subject of appeal ( Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139). 90.Third, if the relevant ruling was in fact interlocutory, questions with respect to it may be raised on appeal once a final determination has been…

Legislation Cited

District Court Rules 1973 (NSW)
1 mention
Workers Compensation Act 1987 (NSW)
1 mention
Workers Compensation Commission Rules 2006 (NSW)
1 mention
Workers Compensation Commission Rules 2010 (NSW)
1 mention
Workplace Injury Management and Workers Compensation Act 1998 (NSW)
1 mention

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Dunphy v Boney [2010] NSWWCCPD 111
APPELLANT:		M J & D A Dunphy
RESPONDENT:		Michael Dean Boney
INSURER:		CGU Workers Compensation (NSW) Limited
FILE NUMBER:		A1-002074/10
ARBITRATOR:	Mr D Minus
DATE OF ARBITRATOR’S DECISION:		24 June 2010
DATE OF APPEAL DECISION:		28 October 2010
SUBJECT MATTER OF DECISION:		Discretion to admit late documents; application of pt 10 r 10.3 of the Workers Compensation Commission Rules 2010, and interlocutory orders.
PRESIDENTIAL MEMBER:		President Judge Keating
HEARING:		On the Papers
REPRESENTATION:		Appellant:	Sparke Helmore Lawyers
Respondent:	McCabe Partners Lawyers
ORDERS MADE ON APPEAL:		1. The decision of the Arbitrator dated 24 June 2010 is revoked and the matter is remitted to another Arbitrator for determination afresh. 2. The appellant employer to pay the worker’s costs of the arbitration hearing of 28 May 2010. 3. No order as to costs of the appeal.