Fairfield City Council v Elek

In the case of Fairfield City Council v Elek, the respondent sought a review of an Arbitrator’s determination regarding the entitlement to workers' compensation benefits. The dispute arose from the Arbitrator's decision to limit the consideration of evidence and arguments to the specific question of whether the respondent could rely on section 254(3)(a) of the Workplace Injury Management and Workers Compensation Act 1998 to establish "special circumstances." The matter was heard in the Dust Diseases Tribunal of New South Wales.

The primary legal issue the court had to address was whether the Arbitrator erred in law by deciding the dispute on a basis not put by the parties and by making alleged errors in fact finding. The respondent argued that the Arbitrator had not properly considered the relevant provisions of the Act and had failed to assess all the evidence that was before them. The council, on the other hand, contended that the Arbitrator correctly exercised their discretion in managing the proceedings and that there was no error in the determination.

The court found that the Arbitrator had indeed erred in law by deciding the dispute on a basis not put by the parties. The court emphasised that the Arbitrator must ensure that all relevant arguments and evidence are considered before making a determination, especially in matters involving statutory interpretation and the application of legislative provisions. Furthermore, the court identified specific errors in fact finding that undermined the Arbitrator's decision. The court concluded that these errors required the matter to be remitted for redetermination by another Arbitrator.

Accordingly, the court revoked the Certificate of Determination dated 7 July 2016 and remitted the matter to be reconsidered by another Arbitrator, limited to the specific issue of whether the respondent is entitled to rely on section 254(3)(a) of the 1998 Act for the purpose of establishing "special circumstances" under section 254(2) of that Act.