Fairfield City Council v McBride - [2019] NSWWCCPD 28

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Fairfield City Council v McBride [2019] NSWWCCPD 28
APPELLANT:	Fairfield City Council
RESPONDENT:	Shaun McBride
INSURER:	Self-insured
FILE NUMBER:	A1-3903/18
ARBITRATOR:	Mr C Burge
DATE OF ARBITRATOR’S DECISION:	20 December 2018
DATE OF APPEAL DECISION:	20 June 2019
SUBJECT MATTER OF DECISION:	Duty to give adequate reasons: Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110; error in fact-finding: Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402; 79 ALJR 1816
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:	Leigh Virtue & Associates
Respondent:	Carroll & O’Dea
ORDERS MADE ON APPEAL:	1. The Arbitrator’s decision dated 20 December 2018 is revoked. 2. The matter is remitted for re-determination pursuant to s 352(7) of the Workplace Injury Management and Workers Compensation Act 1998 Act by a different Arbitrator, consistent with these reasons.

INTRODUCTION AND BACKGROUND

Shaun McBride (the respondent) was employed by Fairfield City Council (the appellant) from about 1985 to 7 January 2005, in its waste disposal section. The Application to Resolve a Dispute registered on the respondent’s behalf in these proceedings (ARD) alleged 26 specific dates of injury, together with an allegation of injury based on the ‘disease’ provisions of the legislation, with an alleged deemed date being the last date of that employment. At the arbitration hearing the respondent eschewed reliance on any injuries prior to 1 July 1996.[1] As ultimately pursued, the claim was one for weekly compensation from 7 January 2005 to 30 June 2007, a general order for the payment of medical and related expenses pursuant to s 60 of the Workers Compensation Act 1987 (the 1987 Act), and also lump sum compensation in respect of injury to the right leg at or above the knee (this in respect of injury on 31 December 1996). The weekly claim was described as commencing from when the respondent was “made redundant from council in January of 2005”.[2]
[1] Transcript 22 October 2018 (T), T 6.5–20.
[2] T 8.23–26.
The matter was listed for arbitration hearing on 22 October 2018. Mr Morgan appeared for the respondent, and Mr Macken for the appellant. Neither party sought to adduce oral evidence; the parties’ legal representatives made submissions and the Arbitrator reserved his decision. The Commission issued a Certificate of Determination dated 20 December 2018, accompanied by 30 pages of reasons.[3] The matters in issue were described by the Arbitrator, in a way that is not the subject of criticism in this appeal,[4] as whether any of the alleged injuries occurred, whether there was any resultant incapacity, the extent of any incapacity, and whether there were any reasonably necessary medical expenses as a result of relevant injury.
[3] McBride v Fairfield City Council [2019] NSWWCC 19 (reasons).
[4] Reasons, [8].
The Arbitrator made a weekly award in the respondent’s favour from 7 January 2005 to 30 June 2007, a general order for the payment of s 60 expenses,…

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: [2019] NSWWCCPD 28
Decision Date: 20 June 2019

CaseChat Overview and Summary

In the case of Fairfield City Council v McBride, the dispute involved the claimant, McBride, who sought compensation from the Fairfield City Council for a workplace injury. The case was heard in the NSW Civil and Administrative Tribunal (NCAT). The primary issue before the court was whether the Arbitrator had provided adequate reasons for their decision, and whether there had been an error in fact-finding that warranted intervention under the Workplace Injury Management and Workers Compensation Act 1998.

The court examined the Arbitrator’s decision to determine whether it had sufficiently addressed the evidence and applied the relevant legal principles. The Tribunal found that the Arbitrator had failed to adequately explain how they arrived at their conclusions, particularly in relation to the assessment of the evidence and the application of the law. This failure meant that the decision did not meet the standard required for judicial review. The court also considered whether there had been an error in fact-finding that was so significant it warranted the Tribunal's intervention. The Tribunal found that the Arbitrator had indeed made an error in their assessment of the evidence, leading to an outcome that was not supported by the facts.

Consequently, the Tribunal revoked the Arbitrator's decision and ordered that the matter be remitted for re-determination by a different Arbitrator, ensuring that the new decision would be based on a proper consideration of the evidence and a clear articulation of the reasons for the decision. The Tribunal emphasised the importance of providing adequate reasons in administrative decisions to ensure transparency and accountability in the decision-making process.

Orders

Orders of the court

1. The Arbitrator’s decision dated 20 December 2018 is revoked.

2. The matter is remitted for re-determination pursuant to s 352(7) of the Workplace Injury Management and Workers Compensation Act 1998 Act by a different Arbitrator, consistent with these reasons.

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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