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Gambaro v Workers' Compensation Regulator

Gambaro v Workers' Compensation Regulator

Case [2017] ICQ 5 19 September 2017

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INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Gambaro v Workers’ Compensation Regulator [2017] ICQ 005

PARTIES:

MICHAEL ALEXANDER GAMBARO

v

WORKERS’ COMPENSATION REGULATOR

FILE NO:

C/2017/10

PROCEEDING:

Application to dismiss appeal

DELIVERED ON:

19 September 2017

HEARING DATE:

31 July 2017

MEMBER:

Martin J, President

ORDER/S:

1. The appeal is dismissed.

2. The appellant pay the respondent’s costs of the application and the appeal on the standard basis.

CATCHWORDS:

WORKERS’ COMPENSATION – PROCEEDINGS TO OBTAIN COMPENSATION – DETERMINATION OF CLAIMS – APPEALS, JUDICIAL REVIEW AND STATED CASES – PROCEDURE – OTHER MATTERS – where the appellant has filed an appeal of the decision of the Commission – where the respondent has brought an application to dismiss the appeal on the bases that the notice of appeal is not concise and that it discloses no error of law – whether the appeal ought to be dismissed – where the respondent also seeks its costs of the application and the appeal – whether the respondent should be awarded costs

LEGISLATION:

Industrial Relations Act 2016, ss 541, 545, 558

Industrial Relations (Tribunals) Rules 2011, rr 139, 226

Workers’ Compensation and Rehabilitation Act 2003

CASES:

Althaus v Australia Meat Holdings Pty Ltd [2009] QCA 221, cited

Armstrong v Local Government Workcare [2014] ICQ 007, cited

Gambaro v the Workers’ Compensation Regulator [2017] QIRC 033, related

MIM Holdings Ltd v AMWU (2000) 164 QGIG 370, cited

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, cited

MNSBJ Pty Ltd v Downing [2017] QCA 141, cited

Pritchard v Blackwood [2014] ICQ 002, not followed

Queensland Police Service v Rose [2016] QCA 105, cited

Robertson v Hollings [2009] QCA 303, cited

Waterford v Commonwealth (1987) 163 CLR 54, cited

APPEARANCES:

The appellant appeared in person

D Callaghan directly instructed by the respondent

The appellant was formerly employed as a telesales consultant. In late 2015 he tripped over an electrical cord from a radio while at work. He claims that this caused an injury in his left inguinal region.
The appellant’s claim was rejected by WorkCover and that decision was later confirmed by the Regulator. His appeal of the Regulator’s decision was dismissed on appeal to the Commission.
The proceeding before the Court
The appellant has appealed the Commissioner’s decision. In this application, the respondent seeks orders dismissing the entire appeal pursuant to s 541(b) or s 558 of the Industrial Relations Act 2016 (“IR Act”), or having the appeal set aside under r 226 of the Industrial Relations (Tribunals) Rules 2011 (“IR Rules). Alternatively, the respondent seeks an order that those grounds of the appeal outside the court’s jurisdiction be set aside.
This decision concerns only the respondent’s application. It is not a determination of the substantive appeal.
The application has two bases:
(a)The appellant’s failure to comply with r 139 of the IR Rules, namely to state the grounds of appeal concisely; and
(b)The absence of any ground of appeal.
At the outset, it should…

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.

Continue reading Gambaro v Workers' Compensation Regulator

Details

AGLC: Gambaro v Workers' Compensation Regulator [2017] ICQ 5
Case: [2017] ICQ 5
Decision Date: 19 September 2017

CaseChat Overview and Summary

In the case of Gambaro v Workers' Compensation Regulator, the appellant has filed an appeal against the decision of the Commission, which involved the determination of a workers' compensation claim. The respondent, the Workers' Compensation Regulator, has subsequently brought an application to dismiss the appeal on the grounds that the notice of appeal is not concise and does not disclose any error of law. The central legal issue before the court was whether the appeal should be dismissed due to deficiencies in the notice of appeal, and if so, whether the respondent should be awarded costs associated with the application and the appeal.

The court carefully considered the nature and content of the notice of appeal, assessing whether it met the requirements for an adequate statement of grounds for the appeal. The court found that the notice of appeal was indeed lacking in conciseness and did not adequately disclose any errors of law that could be reviewed. As a result, the appeal was dismissed. The court also evaluated the respondent's request for costs associated with the application to dismiss the appeal and the appeal itself. It determined that the respondent was entitled to its costs, given the lack of merit in the appeal and the respondent's need to defend the proceedings.

In conclusion, the court dismissed the appeal on the basis that the notice of appeal was not sufficiently concise and did not disclose any errors of law. The court further ordered that the respondent be awarded costs for the application to dismiss the appeal and the appeal itself, reflecting the lack of merit in the appellant's case. These costs were to be paid by the appellant, thereby ensuring that the respondent's resources expended in defending the proceedings were appropriately compensated.

Orders