G & D Brown Reola Partners v Dutoit - [2008] NSWWCCPD 1

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:G & D Brown/Reola Partners v Dutoit & ors [2008] NSWWCCPD 1

APPELLANT:  G & D Brown/Reola Partners
FIRST RESPONDENT:  Cheryl Dutoit
SECOND RESPONDENT:  Laura Morrison
THIRD RESPONDENT:  Amanda Morrison
INSURER:QBE Workers Compensation (NSW) Ltd
FILE NUMBER:  WCC2920-07
DATE OF ARBITRATOR’S DECISION:          27 July 2007
DATE OF APPEAL DECISION:  2 January 2008
SUBJECT MATTER OF DECISION: Section 25 and 26 of the Workers Compensation Act 1987; wholly or partially dependent on deceased worker; application of the law; inadequate reasons for decision
PRESIDENTIAL MEMBER:  Deputy President Gary Byron
HEARING:On the papers
REPRESENTATION:  Appellant:      Moray & Agnew
FirstRespondent:      Higgins Solicitors
Second Respondent:  Carroll & O’Dea Solicitors
Third Respondent:    Firths – The Compensation Lawyers

ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 27 July 2007 is revoked.
The matter is remitted to another Arbitrator for determination afresh, in accordance with these Reasons.

No order is made as to the costs of this appeal.

BACKGROUND

On 24 August 2007 G & D Brown/Reola Partners (‘Reola Partners’), the Appellant Employer, sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 27 July 2007. QBE Workers Compensation (NSW) Ltd (‘the Insurer’) was Reola Partners’ Insurer.

Mr Anthony Paul Morrison (‘the deceased worker’) died in the course of his employment with Reola Partners, on 4 May 2006 as a result of an explosion at the work site. Ms Dutoit, the First Respondent had met the deceased worker in or about 1997 and in approximately 2002 commenced a de-facto relationship with him. Following the worker’s death Ms Dutoit lodged a claim for death benefits with the Insurer pursuant to section 25 of the Workers Compensation Act 1987 (‘the 1987 Act’).

The Second Respondent, Laura Morrison, and Third Respondent, Amanda Morrison, the deceased worker’s daughters by a previous relationship with Ms Kerrie Miller, also made a claim for death benefits on the basis that they were dependants of the deceased worker. As settlement between the claimants appeared unlikely, and apportionment between the alleged dependants had to be ascertained pursuant to section 29 of the 1987 Act, Ms Dutoit proceeded to lodge an ‘Application to Resolve a Dispute’ with the Commission on 24 April 2007 seeking compensation pursuant to sections 25 and 26 of the 1987 Act. In her Application she named herself, Nicole Frances Mackey, Laura Morrison and Amanda Morrison as dependants of the deceased worker.

On 8 May 2007, Reola Partners filed a ‘Reply to Application to Resolve a Dispute’ in the Commission.

On 17 May 2007, Laura Morrison and Amanda Morrison filed a ‘Reply to Application to Resolve a Dispute’ in the Commission. Not all documents are date stamped, but all late documents were accompanied by an ‘Application to Admit Late Documents’, and were accepted in and by the Commission. Other documents were filed, including a statutory declaration dated 28 May 2007, by Kerrie Miller,…

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: [2008] NSWWCCPD 1
Decision Date: 2 January 2008

CaseChat Overview and Summary

In this case, G & D Brown/Reola Partners appealed a decision made by an arbitrator in the Workers Compensation Commission. The deceased worker had died in the course of his employment, and various dependants sought compensation under the Workers Compensation Act 1987. The appeal was based on several grounds, including the arbitrator's finding that the deceased worker's daughters were wholly dependent on him, the application of the law to the facts of the case, the adequacy of the reasons for the decision, and the failure to certify the matter as 'complex' for costs purposes. The court found that the arbitrator's reasons for decision were inadequate, as they did not provide a clear explanation of the reasons for preferring some submissions as to the significance of the facts, the significance attached to them, and the application of the law to them. The court also found that the arbitrator failed to deal with the position of the deceased worker's daughter, Nicole Mackey, who was included in the initial application as a dependant. The decision of the arbitrator was revoked, and the matter was remitted to another arbitrator for determination afresh. No order was made as to the costs of this appeal.

Orders