Harding v Westpac Banking Corporation

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

1. 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

1. 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].

2. 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].

3. Difficulties developed between Mr Harding and Michael Miller, the Head of Institutional…