He v L & J Precision Joinery & Kitchen - [2005] NSWWCCPD 100

WORKERS COMPENSATION COMMISSION

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

CITATION:He v L & J Precision Joinery & Kitchen [2005] NSWWCCPD 100
APPELLANT:  Xiao Bin He
RESPONDENT:  Chuan Min Xu & Yong Liang Bao as trustees for Xu & Bao Family Trust trading as L & J Precision Joinery & Kitchen
INSURER:GIO Workers Compensation (NSW) Limited
FILE NUMBER:  WCC14740-04
DATE OF ARBITRATOR’S DECISION:          30 March 2005
DATE OF APPEAL DECISION:  29 August 2005
SUBJECT MATTER OF DECISION: Sections 151A, 151C and 151D of the Workers Compensation Act 1987; election to commence proceedings in the District Court, and preclusion from commencing proceedings in the Workers Compensation Commission.
PRESIDENTIAL MEMBER:  Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION:  Appellant:      Keddies Litigation Lawyers
Respondent:   Rankin Nathan Lawyers

ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
No order is made as to costs of the appeal.

BACKGROUND TO THE APPEAL

On 27 April 2005 Xiao Bin He, the Appellant sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission against a decision, dated 29 March 2005 (but see paragraphs 11 and 12, below).

The Respondent to the Appeal is Chuan Min Xu & Yong Liang Bao as Trustees for Xu & Bao Family Trust trading as L & J Precision Joinery and Kitchen. The Respondent is described in a number of ways in the various documents in the file. However, after reading the documents, it would appear that the legal arrangements of the Respondent are correctly reflected in the way the Respondent is now described in this appeal.

The Insurer is GIO Workers Compensation (NSW) Limited.

Mr He claims that on 17 August 2001 he suffered an injury to his right hand and right index finger when he was cleaning a machine, arising out of or in the course of his employment with L & J Precision Joinery and Kitchen. Mr He notified L & J Precision Joinery and Kitchen of the injury on 17 August 2001 and made a claim for workers compensation on 1 September 2001.

On 26 November 2001 Mr He filed a Statement of Claim in the District Court seeking common law damages for the injuries stated above. L & J Precision Joinery and Kitchen was the Defendant in those proceedings, and argued that the proceedings had been commenced in breach of section 151C of the Workers Compensation Act 1987 (‘the 1987 Act’) in that they had commenced within 6 months of the date of the injury. On 5 April 2004 the District Court proceedings were dismissed with the consent of the parties. On 17 June 2004 Mr He lodged a claim with L & J Precision Joinery and Kitchen and the Insurer for permanent loss compensation in the sum of $17,500 under section 66 of the 1987 Act and $25,000 under section 67 of that Act. The Insurer denied liability.

On 20 September 2004 Mr He lodged an ‘Application to Resolve…

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.

Keep reading for free

Create a free CaseChat account to read He v L & J Precision Joinery & Kitchen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2005] NSWWCCPD 100
Decision Date: 29 August 2005

CaseChat Overview and Summary

The appeal concerns a decision made by an Arbitrator in the Workers Compensation Commission, brought by Xiao Bin He against Chuan Min Xu and Yong Liang Bao as trustees for Xu & Bao Family Trust trading as L & J Precision Joinery & Kitchen. He claims he suffered an injury to his hand while working for L & J Precision Joinery & Kitchen and subsequently filed a claim for workers compensation. He also initiated common law proceedings against L & J Precision Joinery & Kitchen within six months of the injury, in breach of the Workers Compensation Act 1987. The appeal concerns the Arbitrator's finding that He is precluded from bringing an application for lump sum compensation for permanent impairment and pain and suffering in the Commission because he elected to commence proceedings in the District Court.

The central legal issue was whether the Arbitrator erred in finding that He was precluded from bringing an application for compensation in the Commission. The court considered the statutory provisions of the Workers Compensation Act 1987 and the relevant case law, particularly the New South Wales Court of Appeal decision in Gordon v Berowra Holdings Pty Ltd. The court found that the District Court proceedings were not a nullity and that the statutory provisions did not reflect the requisite legislative intention that invalidity or nullity would be the consequence of non-compliance. The court also found that the Arbitrator did not err in her decision.

In conclusion, the appeal was dismissed and the Arbitrator's decision was confirmed. The court found that He made an irrevocable election to commence proceedings in the District Court, and therefore, he is precluded from bringing an application for lump sum compensation for permanent impairment and pain and suffering in the Commission. No order was made as to the costs of the appeal.

Orders