Fairfield City Council v Arduca

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Fairfield City Council v Arduca [2015] NSWCA 166
Hearing dates:	13 March 2015
Decision date:	18 June 2015
Before:	McColl JA; Meagher JA; Sackville AJA
Decision:	Leave to appeal refused. Order the applicant pay the respondent’s costs of the application for leave to appeal.
Catchwords:	WORKERS COMPENSATION – Workers Compensation Commission – review of Arbitrator’s decision by Presidential member – whether applicant employer denied procedural fairness before Arbitrator – where employer relied on s 57 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) as disentitling worker to weekly compensation – where question raised as to reasonableness of worker’s failure to continue in employment – whether provision of “suitable duties” under injury management plan was put in issue WORKERS COMPENSATION – Workers Compensation Commission – review of Arbitrator’s decision by Presidential member – where Presidential member determined whether applicant employer had given notice disputing liability in accordance with s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) – whether when doing so Presidential member failed to engage with substance of employer’s argument
Legislation Cited:	Workers Compensation Act 1987 (NSW), s 43A Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 47, 57, 74, 254, 261, 288, 353
Cases Cited:	Mateus v Zodune Pty Limited t/as Tempo Cleaning Services [2007] NSWWCCPD 227; 6 DDCR 488
Category:	Principal judgment
Parties:	Fairfield City Council (Applicant) Giuseppe Arduca (Respondent)
Representation:	Counsel: J S Emmett (Applicant) B G McManamey (Respondent) Solicitors: Leigh Virtue & Associates (Applicant) Villari Lawyers (Respondent)
File Number(s):	2014/184077
Publication restriction:	Nil
Decision under appeal	Court or tribunal: NSW Workers Compensation Commission Citation: [2014] NSWWCCPD 31 Date of Decision: 29 May 2014 Before: Deputy President Kevin O’Grady File Number(s): A1-304/13

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 16 October 2008, the respondent was injured at work, suffering bilateral inguinal hernias. After returning to work and performing ‘light duties’ as proposed by an injury management plan, the respondent resigned on 19 April 2010 “due to ill health”. On 22 April 2010, the applicant employer disputed liability for those injuries alleging that the respondent had unreasonably elected to retire rather than comply with its injury management plan as required by s 47 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (WIM Act). The respondent referred this dispute to the Workers Compensation Commission. In two decisions, an Arbitrator found in favour of the respondent. Those decisions were affirmed by a Presidential member on appeal. The applicant employer sought leave to appeal against those decisions. That appeal was limited to questions of law.

The issues before the Court were:

Whether the applicant employer was denied procedural fairness in relation to the Arbitrator’s conclusion that s 57 of the WIM Act did not disentitle the respondent to weekly compensation payments; and

Whether the Presidential member failed to address the applicant’s argument that its letter of 13 October 2011…