| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | ||
| CITATION: | Harding v Westpac Banking Corporation [2018] NSWWCCPD 7 | |
| APPELLANT: | Lester Harding | |
| RESPONDENT: | Westpac Banking Corporation | |
| INSURER: | Self-insured | |
| FILE NUMBER: | A1-3925/17 | |
| ARBITRATOR: | Mr J Wynyard | |
| DATE OF ARBITRATOR’S DECISION: | 17 November 2017 | |
| DATE OF APPEAL DECISION: | 28 February 2018 | |
| SUBJECT MATTER OF DECISION: | Admission of fresh evidence on appeal, application of CHEP Australia Ltd v Strickland [2013] NSWCA 351; 12 DDCR 501; s 289A of the Workplace Injury Management and Workers Compensation Act 1998: determination of matters not previously notified as disputed; decision on a basis outside the submissions of the parties: application of Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141; Wrigley Co Pty Ltd v Holland [2002] NSWCA 109; 23 NSWCCR 463 and Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; 3 DDCR 1; failure to consider a relevant concession – error in fact finding: application of Waterways Authority v Fitzgibbon [2005] HCA 57; 221 ALR 402; 79 ALJR 1816, party seeking to rely on evidence and arguments not raised at first instance. | |
| PRESIDENTIAL MEMBER: | Deputy President Michael Snell | |
| HEARING: | On the papers | |
| REPRESENTATION: | Appellant: | McNally Jones Staff |
| Respondent: | HWL Ebsworth Lawyers | |
| ORDERS MADE ON APPEAL: | 1. The respondent’s application to rely on fresh evidence pursuant to s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998 is refused. 2. Sub-paragraph [1(c)] of the Certificate of Determination dated 17 November 2017 is revoked, and the following order is made in its place: “(c) From 4 April 2017 to date and continuing, at the rate of $919.92 pursuant to s 37.” 3. The balance of the Certificate of Determination is confirmed. | |
INTRODUCTION
This matter involved a claim for continuing weekly payments of compensation, from 28 November 2016, resulting from a psychological injury. The appeal raises an issue going to whether the Arbitrator erred, in awarding weekly payments for a closed period from 28 November 2016 to 30 August 2017, having regard to the evidence, and the way in which the matter was conducted by the parties at the arbitration hearing. For reasons which follow, the appeal is upheld.
BACKGROUND
Lester Harding was employed by Westpac Banking Corporation (Westpac) as a Senior Relationship Manager, from 2008. A team of four people reported to him, and his work involved the practice of margin lending. He stated that his duties involved “a combination of client relationship management, sales and administration”. He said that he managed “approximately $800,000,000.00 in margin debt as at end of November 2016”.[1]
[1] Mr Harding’s statement dated 14 March 2017 (Harding 1), [42].
Mr Harding stated that in October 2015 he was stressed and anxious when he was told he would be losing a team member in a restructure, and should confirm who it would be. He saw a doctor and was prescribed sleeping pills.[2]
[2] Harding 1, [69]–[71].
Difficulties developed between Mr Harding and Michael Miller, the Head of Institutional…
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- Case
- [2018] NSWWCCPD 7
- Decision Date
CaseChat Overview and Summary
The legal issues the court needed to address included whether the respondent could introduce new evidence under section 352(6) of the Workplace Injury Management and Workers Compensation Act 1998, whether the decision-maker had considered all relevant submissions, and whether any errors in fact-finding warranted a revision of the original determination. The applicant argued that the introduction of new evidence would be inappropriate, while the respondent contended that the new evidence was crucial for a fair determination.
The court ruled that the respondent's application to rely on fresh evidence was not permissible under section 352(6) of the Act, as it was not within the scope of what the court had deemed admissible. Additionally, the court found that the decision-maker had failed to consider certain relevant submissions, leading to an error in the determination of the weekly compensation rate. Consequently, the court revoked part of the original certificate and substituted a new rate of compensation. The remaining parts of the original certificate were upheld.
The final orders of the court were to deny the respondent’s application for fresh evidence, to revoke a specific part of the original certificate and substitute a new compensation rate, and to confirm the rest of the original certificate.
Orders
Orders of the court
1. The respondent’s application to rely on fresh evidence pursuant to s 352(6) of the Workplace Injury Management and Workers Compensation Act 1998 is refused.
2. Sub-paragraph [1(c)] of the Certificate of Determination dated 17 November 2017 is revoked, and the following order is made in its place:
“(c) From 4 April 2017 to date and continuing, at the rate of $919.92 pursuant to s 37.”
3. The balance of the Certificate of Determination is confirmed.
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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