Gerene Nominees Pty Ltd v Pritchard - [2007] NSWWCCPD 189

WORKERS COMPENSATION COMMISSION

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

CITATION:Gerene Nominees Pty Ltd v Pritchard [2007] NSWWCCPD 189
APPELLANT:  Gerene Nominees Pty Ltd
RESPONDENT:  Joyce Elizabeth Pritchard
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER:  WCC1046-07
DATE OF ARBITRATOR’S DECISION:          10 April 2007
DATE OF APPEAL DECISION:  3 September 2007
SUBJECT MATTER OF DECISION:                Fresh evidence; incapacity; rate of weekly compensation payable; suspension of weekly payments by reason of worker’s failure to comply with a workplace injury management plan
PRESIDENTIAL MEMBER:  Acting Deputy President Anthony Candy
HEARING:On the papers.
REPRESENTATION:  Appellant:      McCulloch & Buggy, Solicitors
Respondent:   Peninsula Law, Solicitors

ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 10 April 2007, is revoked and the matter is remitted to another Arbitrator for determination afresh in accordance with these reasons.
No order as to the costs of the appeal.

BACKGROUND TO THE APPEAL

Joyce Elizabeth Pritchard (‘the worker’) suffered an injury to her left knee while at work on 10 March 2006. On that day she had commenced employment as an Assistant in Nursing with Gerene Nominees Pty Ltd (‘the employer’) which conducted Netherby Aged Care Facility, a nursing home, at Wahroonga. It is the shortness of that particular employment which has, in part, given rise to the dispute in this matter. Additionally, QBE Workers Compensation (NSW) Limited (‘QBE’), the employer’s insurer, discontinued payments of weekly compensation for a period by reason of the worker’s alleged failure to comply with a workplace injury management plan.
The worker registered an Application to Resolve a Dispute with the Workers Compensation Commission (‘the Commission’) on 20 February 2007 claiming weekly payments of compensation from 24 May 2006 in the sum of $490.20 per week.
A Reply was lodged by the employer on 13 March 2007. The matters in dispute were said to be:
·Whether the worker suffered injury in the course of employment.
·Whether the worker’s employment was a substantial contributing factor to her injury.
·Whether the worker had recovered from the effects of any work-related injury.
·Whether the worker was incapacitated as claimed or at all.
·Whether the worker was only partially incapacitated and was by the provisions of section 52A of the Workers Compensation Act 1987 (‘the 1987 Act’) not entitled to weekly compensation.
·The level of the worker’s earnings while employed by the employer.
·The rate at which weekly payments of compensation should be paid.
Not all of those matters were ultimately pressed.
The proceedings were referred to a Commission Arbitrator who on 27 March 2007 held a teleconference. The matter was set down for conciliation/arbitration on 5 April 2007 at the conclusion of which the Arbitrator found in favour of the worker although he considered that payments of compensation had properly been suspended for a period of three weeks only. A Certificate of Determination was issued dated 10 April 2007. It is against that decision of the Arbitrator that the employer now seeks leave to appeal and the worker seeks leave…

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: [2007] NSWWCCPD 189
Decision Date: 3 September 2007

CaseChat Overview and Summary

The matter of Gerene Nominees Pty Ltd v Pritchard was before the court to determine the admissibility of new evidence in an appeal process. The appellant, Gerene Nominees, sought to introduce new evidence to challenge a decision made by an arbitrator. The respondent, Pritchard, opposed the introduction of this new evidence. The court was required to determine whether the Practice Direction No 6, which outlines the process for seeking leave to give new evidence, was correctly applied by the Deputy President in rejecting the new evidence.

The primary legal issue was whether the Deputy President correctly applied the criteria set out in Practice Direction No 6 when deciding to exclude the new evidence. Specifically, the court needed to consider whether the Deputy President properly assessed whether the new evidence could not reasonably have been obtained earlier and whether its exclusion would cause substantial injustice. The Court of Appeal in Haider v J P Morgan Holdings Aust Ltd had previously highlighted that the Practice Direction's approach might not fully align with the statutory provisions allowing for the admission of additional evidence. The court had to determine if the Deputy President's reliance on the Practice Direction led to an erroneous application of the law.

In its reasoning, the court found that the Deputy President did not correctly apply the criteria for admitting new evidence. The Deputy President's decision appeared to be based on a narrow interpretation of the Practice Direction, which the court found to be incorrect. The court held that the Deputy President should have considered whether the new evidence could be treated as additional evidence, which does not necessarily need to meet the criteria for "fresh" evidence. The Court of Appeal's decision in Haider made it clear that a more flexible approach should be adopted, taking into account the principles of equity, good conscience, and the substantial merits of the case. Consequently, the Deputy President's decision was found to be legally flawed.

The court ordered that the decision of the Deputy President be quashed and remitted to a different Presidential member for reconsideration in light of the court's findings. The new evidence was to be assessed afresh, applying the correct legal principles regarding the admissibility of additional evidence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Practice Direction No 6 sets out the process for seeking leave of the Commission to give ‘new evidence’ on appeal. It provides as follows:“New EvidenceWhere a party seeks leave to give new evidence in relation to the decision appealed against, that party must serve a copy of the new evidence on the other parties to the dispute when serving the Application or Opposition.In general, the Commission will allow new evidence to be introduced only where it can be demonstrated that the new evidence could not reasonably have been obtained by the party and tendered in proceedings before the Arbitrator and that failure to allow the new evidence would cause a substantial injustice in the circumstances of the individual case.” It also provides that if new evidence is sought to be relied upon, the Application or Opposition to the Appeal must contain:“ -a schedule of the new evidence;-a copy of the new evidence; -a brief outline of the new evidence and the reasons why it was not given in the proceedings before the Arbitrator, and -submissions why the new evidence should be admitted.” The Court of Appeal considered the Practice Direction in Haider v J P Morgan Holdings Aust Ltd trading as J P Morgan Operations Australia Ltd [2007] NSWCA 158 (‘Haider’). Basten JA, with whom Giles and McColl JJA agreed, said the following:“41.This language [of the Practice Direction] appears to reflect the conditions which must generally be met before ‘fresh evidence’ is admitted: see Akins v National Australia Bank (1994) 34 NSWLR 155 at 160. However, to limit the admission of ‘new’ evidence to such circumstances is to ignore the fact that the statute expressly provides an alternative to ‘fresh’ evidence by express reference to ‘evidence in addition to or in substitution for’ the evidence received below. To apply a test such as that set out in the Practice Direction, although introduced by the amelioratory words ‘in general’, is apt to give rise to error by treating the discretion as fettered in a way which it is not: see in relation to the use of the term ‘further’ evidence in s75A(8) of the Supreme Court Act 1970 (NSW) as applicable in this Court, Aztech Science Pty Ltd v Atlanta Aerospace (Woy Woy) Pty Ltd [2005] NSWCA 319; (2005) 55 ACSR 1 at [98]-[108]. Further, it is to ignore the reduction of formality and technicality and the requirement to act according to equity, good conscience and the substantial merits of the case, as mandated by s354(1)-(3) (see [15] above).” His Honour continued:“45.The second reason the Deputy President gave [for rejecting new evidence] was that he was not satisfied that ‘with reasonable diligence the evidence could not have been obtained before the arbitration hearing.’ However, that, with respect, appears to be a direct application of the guidance given by the Practice Direction, with the result that there was a failure to consider the possibility that the evidence might be treated as additional evidence which did not need to satisfy the common understanding of ‘fresh’ evidence. A more flexible test was available, but not applied. 46.A third and separate reason given by the Deputy President was a lack of satisfaction that ‘the failure to allow the fresh evidence will cause a substantial injustice in all the circumstances of the case’. Again, that appears to be a direct reflection of the practice direction, the context for the failure to form the relevant satisfaction again being limited to a consideration of ‘fresh’ evidence.47.The proceedings by way of ‘appeal’ to a Presidential member were said to be by way of ‘review’ of the decision of the arbitrator: s352(5). The broad power to admit, with leave, further evidence and the power of the Presidential member to confirm or revoke the decision and to make a new decision in its place indicate that the appeal is subject to no greater constraints than a rehearing; see Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [13]. The constraints are not greater because effect must be given to the procedural consequences of s354(1)-(3), which apply equally to hearings before an arbitrator and before a Presidential member. Accordingly, the Deputy President misdirected himself as to the test to be applied in considering whether additional evidence should be admitted.”

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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