Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Hee v State Transit Authority of New South Wales [2019] NSWCA 175 Hearing dates: 15 October 2018 Decision date: 17 July 2019 Before: Meagher JA at [1];
White JA at [36];
Simpson AJA at [117]Decision: 1. Appeal allowed.
2. Remit the proceedings to the Workers Compensation Commission for rehearing or redetermination of the appellant’s claim in accordance with the reasons of the majority of the Court.
3. Respondent to pay the appellant’s costs of the appeal.Catchwords: WORKERS COMPENSATION – Workers Compensation Act 1987 (NSW) – construction of s 38A – where appellant a worker with highest needs –whether arbitrator made finding that appellant able to return to pre-injury employment – whether appellant entitled to compensation under s 38A Legislation Cited: Interpretation Act 1987 (NSW), ss 33, 34
Workers Compensation Act 1987 (NSW), ss 9, 32A, 33, 34, 35, 36, 37, 38, 38A, 43, 44B, 44C, 44I, 65, 66A, Pt 3 Div 2
Workers Compensation Amendment Act 2015 (NSW), s 2, sch 2
Workers Compensation Legislation Amendment Act 2012 (NSW), s 2, sch 1, sch 2
Workers’ Compensation Act 1926 (NSW), s 11
Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 352, 353Cases Cited: AAI Ltd t/as GIO as agent for the Nominal Defendant v McGiffen [2016] NSWCA 229
Arnotts Snack Products Pty Ltd v Yacob (1985) 155 CLR 171; [1985] HCA 2
Dranichnikov v Minister for Immigration [2003] HCA 26; (2003) 77 ALJR 1088
Eraring Energy v Brownlie [2008] NSWWCCPD 42
Inco Europe Ltd v First Choice Distribution [2000] 1 WLR 586
Kesen v Luke Singer Pty Ltd (1989) 18 NSWLR 566
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 8
Sabanayagam v St George Bank Ltd [2016] NSWCA 145
Speirs v Industrial Relations Commission of New South Wales [2011] 81 NSWLR 348; [2011] NSWCA 206
Tan v National Australia Bank Ltd [2006] NSWWCCPD 115
Tan v National Australia Bank Ltd [2008] NSWCA 198; (2008) 6 DDCR 363
Taylor v The Owners – Strata Plan No 11564 (2013) 83 NSWLR 1; [2013] NSWCA 55
Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9
The King Island Company Ltd v Deery [2005] NSWWCCPD 1
Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc (2014) 86 NSWLR 527; [2014] NSWCA 105
Wentworth Securities Ltd v Jones [1980] AC 74
Williams v Metropolitan Coal Ltd (1948) 76 CLR 431; [1948] HCA 8Texts Cited: Explanatory note to the Workers Compensation Amendment Bill 2015 (NSW)
Explanatory note to the Workers Compensation Legislation Amendment Bill 2012 (NSW)
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 5 August 2015Category: Principal judgment Parties: Michael Hee (Appellant)
State Transit Authority of New South Wales (Respondent)Representation: Counsel:
Solicitors:
BG McManamey (Appellant)
SL Flett and Dr S Blount (Respondent)
Law Partners Personal Injury Lawyers (Appellant)
Moray & Agnew (Respondent)
File Number(s):
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Details
- AGLC
- Hee v State Transit Authority of New South Wales [2019] NSWCA 175
- Case
- [2019] NSWCA 175
- Decision Date
CaseChat Overview and Summary
The appeal in *Hee v State Transit Authority of New South Wales* concerned the interpretation and application of section 38A of the *Workers Compensation Act 1987* (NSW). The appellant, a worker with the highest needs, sought compensation under this provision, but the primary dispute revolved around whether the arbitrator had made a finding that the appellant was able to return to their pre-injury employment.
The Court of Appeal was required to determine two key legal issues. Firstly, whether the arbitrator erred in finding that the appellant was not entitled to compensation under section 38A. Secondly, relatedly, whether the arbitrator had made a determination that the appellant was capable of returning to their pre-injury employment, which would preclude compensation under that section.
The majority of the Court found that the arbitrator had misconstrued section 38A. They reasoned that the provision did not require a finding that a worker was unable to return to pre-injury employment as a prerequisite for receiving compensation. Instead, the focus was on whether the worker had the highest needs and whether suitable employment was available. The Court concluded that the arbitrator's approach had been erroneous, leading to an incorrect outcome. Consequently, the appeal was allowed, and the proceedings were remitted to the Workers Compensation Commission for rehearing or redetermination. The respondent was ordered to pay the appellant's costs of the appeal.
The Court of Appeal was required to determine two key legal issues. Firstly, whether the arbitrator erred in finding that the appellant was not entitled to compensation under section 38A. Secondly, relatedly, whether the arbitrator had made a determination that the appellant was capable of returning to their pre-injury employment, which would preclude compensation under that section.
The majority of the Court found that the arbitrator had misconstrued section 38A. They reasoned that the provision did not require a finding that a worker was unable to return to pre-injury employment as a prerequisite for receiving compensation. Instead, the focus was on whether the worker had the highest needs and whether suitable employment was available. The Court concluded that the arbitrator's approach had been erroneous, leading to an incorrect outcome. Consequently, the appeal was allowed, and the proceedings were remitted to the Workers Compensation Commission for rehearing or redetermination. The respondent was ordered to pay the appellant's costs of the appeal.
Orders
Orders of the court
1. Appeal allowed.
2. Remit the proceedings to the Workers Compensation Commission for rehearing or redetermination of the appellant’s claim in accordance with the reasons of the majority of the Court.
3. Respondent to pay the appellant’s costs of the appeal.
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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