Fairfield City Council v Comlekci - [2023] NSWPICPD 6

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Fairfield City Council v Comlekci [2023] NSWPICPD 6
APPELLANT:	Fairfield City Council
RESPONDENT:	Naciye Comlekci
INSURER:	Self-insured
FILE NUMBER:	A1-W6635/21
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	8 February 2023
ORDERS MADE ON APPEAL:	1. The application for leave to appeal pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998 is refused. 2. The matter is remitted to the same non-Presidential Member for determination of the remaining issues in dispute.
CATCHWORDS:	WORKERS COMPENSATION – application for leave to appeal an interlocutory decision pursuant to s 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr P Macken, solicitor
Leigh Virtue & Associates
Respondent:
Mr Andrew Parker, counsel
Carroll & O’Dea Lawyers
DECISION UNDER APPEAL
MEMBER:	Mr G Whiffin
DATE OF Member’s DECISION:	21 April 2022

INTRODUCTION AND BACKGROUND

Ms Naciye Comlekci (the respondent) was employed by Fairfield City Council (the appellant) as a childcare worker. Initially she worked full time at Bonnyrigg Heights Early Learning Centre. On 25 October 2019, she tripped and fell onto her knees and both hands, suffering an injury to her right hand, which caused her to go off work. She then returned to work, performing administrative duties for a period before she returned to her pre-injury duties. Her claim for workers compensation was accepted.
At the beginning of 2020, the respondent was transferred to the Wetherill Park Early Learning Centre. On 10 September 2020, the respondent was minding a child with high needs, who was attempting to get over a low height fence which separated the Early Learning Centre from an occasional care facility. The child, who had been trying to get hold of a bicycle that was in the adjoining property, eventually gave up and turned to the respondent and “head butted” her. In the process of defending herself, the respondent put her hands up, but her right hand was suddenly pushed downwards, causing her pain. The respondent ceased work and sought medical treatment.
The respondent had a short period off work, before returning two days per week for several months, until she returned to full time hours performing her role with children for half of those hours and spending the other half of her hours doing administrative duties. The respondent continued to experience symptoms in her right hand, was unable to perform some tasks such as chopping food and was certified by her medical practitioner to have a lifting limit of 5 kilograms.
On 13 April 2021, the appellant issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) denying ongoing liability for workers compensation payments.[1] The reasons for denial were said to be that the respondent had not suffered an injury, or, if she had suffered an injury, her employment was not the main contributing factor to the injury. In the…

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: [2023] NSWPICPD 6
Decision Date: 8 February 2023

CaseChat Overview and Summary

The applicants, Fairfield City Council, applied for leave to appeal an interlocutory decision of the Industrial Division of the NSW Supreme Court. The respondents were Comlekci and his insurer, QBE Insurance (Australia) Limited. The case concerned a claim for workers compensation made by Comlekci after suffering an injury at work. The council sought to appeal the interlocutory decision which had ordered the respondents to provide certain documents to the council, as well as the refusal of the respondents' application to set aside that order. The appeal was brought under section 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998.

The primary legal issue before the court was whether the applicants had established a significant question of law of general importance that warranted an appeal of the interlocutory decision. The court considered the nature and effect of the interlocutory decision, the importance of the questions of law involved, and the potential impact of the appeal on the overall proceedings. The court also assessed the applicants' prospects of success on the appeal and the potential prejudice to the respondents if leave were granted.

The court found that the applicants had not established a significant question of law of general importance that warranted an appeal of the interlocutory decision. The court held that the questions of law involved were not of general importance and did not warrant an appeal. The court further found that the applicants' prospects of success on the appeal were not strong, and that the respondents would be prejudiced if leave were granted. The appeal was dismissed.

No further orders were made by the court. The interlocutory decision of the Industrial Division of the NSW Supreme Court stood, and the respondents were required to provide the documents to the applicants.

Orders