Emeli Taeiloa v Forstaff Personnel

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APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
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CITATION: Emeli Taeiloa v Forstaff Personnel
[2003] NSWWCCPD 8
APPELLANT: Emeli Taeiloa
RESPONDENT: Forstaff Personnel
INSURER: Allianz Australia Workers Compensation (NSW) Ltd
FILE NO: WCC967-2002
DATE OF DECISION: 21  March, 2003
DATE OF COSTS DECISION: 24 July, 2003
PRESIDENTIAL MEMBER: Deputy President Gary Byron
DECISION UNDER APPEAL: Award for the Respondent
DATE OF DECISION UNDER APPEAL: 21 October, 2002
HEARING: Telephone Conference, 25 February, 2003
REPRESENTATION: Appellant: MBP Legal
Respondent: Goldbergs Lawyers
ORDERS MADE ON APPEAL: The Appeal is not allowed.  The decision appealed against is confirmed.  No order is made as to costs.

THE APPEAL

  1. On 5 November, 2002 Ms Emeli Taeiloa, the Applicant in this dispute (‘the Appellant’) lodged an appeal against the decision of the Commission constituted by an Arbitrator, that Forstaff Personnel (‘the Respondent’) is not liable for the Appellant’s claim for workers compensation.  The decision was made by the Arbitrator on 21 October, 2002 and the Determination was issued on 22 October, 2002.  The insurer is Allianz Australia Workers Compensation (NSW) Ltd (‘the Insurer’).  Directions regarding the appeal against the decision of the Arbitrator were issued to the Appellant on 6 December, 2002 by the Deputy Registrar, by delegation of the Registrar.  The Appellant’s Solicitor responded by letter of 10 December, 2002 in compliance with the Directions advising that service had been effected on the Respondent.  However, the response to the appeal lodged by the Respondent with the Commission, was dated 8 January, 2003 and faxed on 10 January, 2003.  It was not apparent by reference to the file whether the response lodged by the Respondent had been served on the Appellant.  On 5 February, 2003 the Solicitors for both parties were contacted by email and confirmation was sought as to whether this had been done.  In any event, the Solicitor for the Appellant was asked to provide further submissions on the Respondent’s response.  At 3.27pm on the same day, the Solicitor for the Appellant provided by email a copy of the submission that had  been lodged with the Commisson under the covering letter of 10 January, 2003.   On 7 February, 2003 the Solicitor for the Respondent confirmed by telephone and by facsimile transmission that the Respondent’s submission was provided to the Appellant’s Solicitor on 8 January, 2003 and that a response to those submissions was received in a document dated 5 February, 2003. 

  2. By way of background, the Appellant lodged an Application to Resolve a Dispute (‘the Application’) in the Workers Compensation Commission (‘the Commission’) on 22 July, 2002.  The Appellant claimed that she suffered a total incapacity for work as a consequence of an injury that arose out of and in the course of her employment with the Respondent, as a packer.  She claimed that she suffered injuries to her back and her neck on 15 October, 2001 when she fell over backwards onto a pallet.  The Appellant notified the Respondent of the injury on 16 November, 2001.  The Appellant further…

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Details
Case
[2003] NSWWCCPD 8
Decision Date

CaseChat Overview and Summary

The case of Emeli Taeiloa v Forstaff Personnel involved an appeal against a decision made by an arbitrator under Section 352 of the Workplace Injury Management and Workers Compensation Act 1998. The appellant, Mr. Taeiloa, sought to challenge the arbitrator's decision, which was made on a date that ensured the appeal was lodged within the 28-day statutory limit. The primary issue before the court was whether the appellant had met the statutory criteria for appealing the decision, specifically whether the amount of compensation at stake met the thresholds set out in Section 352(2) of the Act.

The court found that the amount of compensation in dispute was at least $5,000 and constituted the entirety of the compensation sought by the appellant, satisfying the first criterion of Section 352(2)(a). Since no award had been made in favour of the appellant, the second criterion of Section 352(2)(b) did not apply. Consequently, the court granted leave to appeal, noting that the refusal to grant such leave would require written reasons. The court held a telephone conference to discuss the matter and agreed to proceed based on the written submissions and discussions rather than additional evidence, finding no unfairness or injustice would result from the absence of a transcript of the arbitration proceedings.

The court ultimately decided not to grant leave for the admission of fresh evidence, deeming the information provided sufficient to exercise its functions under the Act without further hearings. The appeal was dismissed, and the original decision of the arbitrator was upheld. The court did not make any order as to costs.

Orders

Orders of the court

The Appeal is not allowed. The decision appealed against is confirmed. No order is made as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

#Section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the Act’) provides:352 Appeal against decision of Commission constituted by Arbitrator(1) A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commision as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.(2) The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and(b)at least 20% of the amount awarded in the decision appealed against.(3) If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.(4) An appeal can only be made within 28 days after the making of the decision appealed against.(5) An appeal under this section is to be by way of review of the decision appealed against.(6) Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.(7) On appeal, the decision may be confirmed or may be revoked and a new decision made in its place.(8) In this section, decision includes an award, interim award, order, determination, ruling and direction. This is an appeal lodged by a party to a dispute in connection with a claim for compensation. The appeal against the decision of the Arbitrator was lodged on 5 November, 2002, that is, within 28 days after the making of the decision appealed against. There is no dispute that the amount of compensation in dispute between the parties and in issue on appeal is at least $5000, and there being no award made in favour of the Appellant, the whole of the amount claimed remains in issue. Section 352(2)(b) of the Act does not apply to preclude a grant of leave to appeal in this matter. Leave to appeal was granted on 11 February, 2003 and directions were issued on the same date, with a view to submissions being made by the parties at a telephone conference, on a day and at a time to be arranged. A telephone conference was held on 25 February, 2003 in which the legal representatives of both parties were involved. At the conclusion of the conference it was agreed that if the leave to admit fresh evidence was to be refused, I should determine the matter on the papers and that in those circumstances, I could do so without holding any further conference or a formal hearing. On the other hand, it was agreed that if leave to admit fresh evidence was to be given, arrangements would be made for that to be done at a hearing before me at the Workers Compensation Commission. The Respondent requested written reasons if leave to admit fresh evidence was granted and it was agreed that this would be done. I have decided for the reasons set out below, not to grant leave for the admission of fresh evidence. I am satisfied pursuant to section 354(6) of the Act that sufficient information has been supplied to me in connection with these proceedings and I have decided to exercise my functions under the Act without holding any further conference or formal hearing. I am further satisfied, having regard to the nature, content and extent of written submissions provided by the parties, and the submissions made and discussion that took place at the telephone conference on 25 February, 2003, that there is no unfairness, injustice or disadvantage to either party by reason of the absence of a transcript of the arbitration proceedings that took place before the Arbitrator.

Ratio Decidendi

Legal Principle Established

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