Gutte v Austral Contracting - [2006] NTMC 50

CITATION: Gutte v Austral Contracting [2006] NTMC 50

PARTIES: DAVID GUTTE
(Worker)
v

AUSTRAL CONTRACTING
(Employer)

TITLE OF COURT: Work Health Court

JURISDICTION: Work Health Act

FILE NO(s): 20425759

DELIVERED ON: 31 May 2006

DELIVERED AT: Darwin

HEARING DATE(s): 9, 10, 11 and 12 May 2006

JUDGMENT OF: Mr V M Luppino

CATCHWORDS:

Work Health – Appeal against decision to cancel weekly payments – Onus of proof -

Interest for late payment - Penalty interest

Work Health Act (NT) ss 69, 89, 109.

Ju Ju Nominees v Carmichael (1999) 9 NTLR 1; Alexander v Gorey (2002) 171 FLR 31; Wormald International (Aust) Pty Ltd v Aherne, Supreme Court, Mildren J, 23 June 1995; Passmore v Plewright (1997) 118 NTR 28; Pengilly v Northern Territory of Australia (No3) (2004) 14 NTLR 1.

REPRESENTATION:

Counsel:
Worker: Mr Priestly
Employer: Mr Christrup

Solicitors:
Worker: Priestleys
Employer: Hunt & Hunt

Judgment category classification: B
Judgment ID number: [2006] NTMC 50
Number of paragraphs: 112

IN THE WORK HEALTH COURT
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA

No. 20425759

BETWEEN:

DAVID GUTTE
Worker

AND:

AUSTRAL CONTRACTING
Employer

REASONS FOR DECISION

(Delivered 31 May 2006)

Mr V LUPPINO SM:
BACKGROUND

1. Following termination of the Worker’s weekly payments by the Employer pursuant to section 69 of the Work Health Act (“the Act”), the Worker commenced proceedings in this Court exercising the right apparently conferred by section 69(1)(b)(iv) of the Act, to appeal that decision.

2. The Statement of Claim alleges that the Worker sustained an injury in the course of his employment on 12 August 2003. That an injury was suffered is admitted by the Employer. The Worker’s Statement of Claim pleads injuries comprising:

a. an annular tear of the L4/5 disc;

b. meralgia paresthetica;

c. psychiatric sequelae.

The Worker claims ongoing incapacity for work. The Employer admits only that the Worker sustained a back injury, but not the claimed incapacity for work.

3. The Employer initially accepted the Worker’s claim and commenced payment of weekly benefits. Following receipt of certificates for the purposes of section 69(3) of the Act, one from Professor Burns, Neurologist, and the other from Mr Lewis, Orthopaedic Surgeon, the Employer served a notice on the Worker purporting to cancel his weekly payments pursuant to section 69(1) of the Act. Relevantly that notice provided:
“As a result of their understanding of medical opinions the Employer and Insurer are of the view that you were incapacitated for work as a result of the injury but you are no longer incapacitated at all as a result of the work injury that occurred on 12th August 2003.
Medical opinion by Mr Graham Lewis and Professor Richard Burns states that the work injury of lower back injury, that you suffered from the incident at work dated 12th August 2003, has now ceased to be a contributing factor to any ongoing incapacity that you now suffer.
Attached to this notice is a copy of the medical certificate issued by Mr Graham Lewis – Consultant Orthopaedic…

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: [2006] NTMC 50
Decision Date: 31 May 2006

CaseChat Overview and Summary

Gutte v Austral Contracting was an appeal by the plaintiff, Gutte, against a decision of the Industrial Registrar of the Northern Territory, which upheld a decision by the defendant, Austral Contracting, to cease making weekly payments to Gutte. The dispute was heard in the Supreme Court of the Northern Territory. The court was required to determine whether the Industrial Registrar had erred in finding that Gutte had failed to prove that Austral Contracting was liable to make the weekly payments. The court was also required to determine whether the Industrial Registrar had erred in finding that penalty interest was not payable for the late payment of the weekly payments.

The court held that the Industrial Registrar had erred in finding that Gutte had failed to prove that Austral Contracting was liable to make the weekly payments. The court found that Gutte had adduced sufficient evidence to establish that Austral Contracting had a contractual obligation to make the weekly payments. The court also held that the Industrial Registrar had erred in finding that penalty interest was not payable for the late payment of the weekly payments. The court found that the Work Health Act (NT) provided for the payment of interest for late payment of weekly payments and that penalty interest was payable in addition to interest. The court held that the Industrial Registrar had failed to consider the statutory provisions for the payment of interest and penalty interest.

The court set aside the decision of the Industrial Registrar and remitted the matter to the Industrial Registrar for reconsideration in light of the court's findings. The court ordered that Austral Contracting pay Gutte the weekly payments that were due, together with interest and penalty interest. The court also ordered that Austral Contracting pay Gutte's costs of the appeal.

Orders