Inghams Enterprises Pty Ltd v Belokoski - [2017] NSWCA 313

Court of Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Inghams Enterprises Pty Ltd v Belokoski [2017] NSWCA 313
Hearing dates: 28 November 2017
Date of orders: 28 November 2017
Decision date: 07 December 2017
Before: McColl JA at [1];
Basten JA at [2];
Bellew J at [45]
Decision:
(1)   Grant leave to appeal.
(2)   Direct the appellant to file a notice of appeal in the form of the draft in the White Book within 7 days.
(3)   Dismiss the appeal.
(4)   Appellant to pay the respondent’s costs of the appeal in this Court.

Catchwords:
CIVIL PROCEDURE – apprehended bias – recusal application to Deputy President hearing appeal refused – Deputy President involved as arbitrator in earlier proceeding between same parties – earlier proceeding discontinued by consent – whether comment in course of telephone directions hearing that there was “no real issue regarding injury” gave rise to reasonable apprehension of bias in later proceeding where injury was in issue – no context for earlier comment – no finding made on evidence – further evidence filed in later proceeding
WORKERS COMPENSATION – appeal on point of law from decision of Deputy President confirming determination of arbitrator in favour of worker – Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 353 – reasonable apprehension of bias on part of Deputy President
Legislation Cited: Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 353, 355
Cases Cited: CUR24 v Director of Public Prosecutions (2012) 83 NSWLR 385; [2012] NSWCA 65
Duncan v Ipp [2013] NSWCA 189; (2013) 304 ALR 359
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Livesey v New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48
Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39
Western Australia v Watson [1990] WAR 248
Category: Principal judgment
Parties: Inghams Enterprises Pty Ltd (Appellant)
Dejan Belokoski (Respondent)
Representation:
Counsel:
D Saul/J Emmett (Appellant)
M Allars SC/C Tanner (Respondent)
Solicitors:
Leigh Virtue & Associates (Appellant)
Carroll & O’Dea (Respondent)

File Number(s): 2017/154898
Decision under appeal

Court or tribunal:

Workers Compensation Commission

Citation:

Inghams Enterprises Pty Ltd v Belokoski [2017] NSWWCCPD 15

Date of Decision:

27 April 2017

Before:

Deputy President Michael Snell

File Number(s):

A2-4346/15

Judgment

McCOLL JA: The reasons of Basten JA, with which I agree, set out the basis on which I concurred with the orders made on 28 November 2017 disposing of the appeal.
BASTEN JA: An appeal may be brought from a decision of a Presidential Member of the Workers Compensation Commission in point of law. [1] The present appeal was brought against a decision of Deputy President Snell delivered on 27 April 2017. The Deputy President confirmed the determination of an arbitrator in favour of the worker, Mr Dejan Belokoski, made on 10 October 2016. [2] The sole ground of appeal was that…

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: [2017] NSWCA 313
Decision Date: 07 December 2017

CaseChat Overview and Summary

Inghams Enterprises Pty Ltd (the appellant) sought leave to appeal to the Court of Appeal of New South Wales against a decision of a Deputy President of the Workers Compensation Commission. The dispute concerned an application for recusal of the Deputy President, who had previously acted as an arbitrator in an earlier, discontinued proceeding between the same parties. The appellant contended that a comment made by the Deputy President during a directions hearing in the later proceeding, suggesting there was "no real issue regarding injury," gave rise to a reasonable apprehension of bias, as injury was a central issue in the appeal.

The primary legal issue before the Court of Appeal was whether the Deputy President’s comment, made in the context of a discontinued earlier proceeding where no evidence had been led or findings made on the issue of injury, created a reasonable apprehension of bias in the subsequent appeal. This involved considering the principles of apprehended bias in administrative decision-making, particularly in the context of a judicial officer having prior involvement with the parties.

The Court of Appeal reasoned that the comment, made without the benefit of evidence or findings in the earlier proceeding, and in circumstances where the earlier proceeding was discontinued by consent, did not demonstrate a pre-judgment of the issues in the appeal. The Court noted that the comment lacked context and was not based on any determination of evidence. Therefore, it did not give rise to a reasonable apprehension of bias. The Court granted leave to appeal but ultimately dismissed the appeal, ordering the appellant to pay the respondent's costs.

Orders

Orders of the court

(1) Grant leave to appeal.

(2) Direct the appellant to file a notice of appeal in the form of the draft in the White Book within 7 days.

(3) Dismiss the appeal.

(4) Appellant to pay the respondent’s costs of the appeal in this Court.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Inghams Enterprises Pty Ltd v Belokoski [2017] NSWCA 313
Hearing dates:	28 November 2017
Date of orders:	28 November 2017
Decision date:	07 December 2017
Before:	McColl JA at [1]; Basten JA at [2]; Bellew J at [45]
Decision:	(1) Grant leave to appeal. (2) Direct the appellant to file a notice of appeal in the form of the draft in the White Book within 7 days. (3) Dismiss the appeal. (4) Appellant to pay the respondent’s costs of the appeal in this Court.
Catchwords:	CIVIL PROCEDURE – apprehended bias – recusal application to Deputy President hearing appeal refused – Deputy President involved as arbitrator in earlier proceeding between same parties – earlier proceeding discontinued by consent – whether comment in course of telephone directions hearing that there was “no real issue regarding injury” gave rise to reasonable apprehension of bias in later proceeding where injury was in issue – no context for earlier comment – no finding made on evidence – further evidence filed in later proceeding WORKERS COMPENSATION – appeal on point of law from decision of Deputy President confirming determination of arbitrator in favour of worker – Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 353 – reasonable apprehension of bias on part of Deputy President
Legislation Cited:	Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 353, 355
Cases Cited:	CUR24 v Director of Public Prosecutions (2012) 83 NSWLR 385; [2012] NSWCA 65 Duncan v Ipp [2013] NSWCA 189; (2013) 304 ALR 359 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Livesey v New South Wales Bar Association (1983) 151 CLR 288; [1983] HCA 17 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39 Western Australia v Watson [1990] WAR 248
Category:	Principal judgment
Parties:	Inghams Enterprises Pty Ltd (Appellant) Dejan Belokoski (Respondent)
Representation:	Counsel: D Saul/J Emmett (Appellant) M Allars SC/C Tanner (Respondent) Solicitors: Leigh Virtue & Associates (Appellant) Carroll & O’Dea (Respondent)
File Number(s):	2017/154898
Decision under appeal	Court or tribunal: Workers Compensation Commission Citation: Inghams Enterprises Pty Ltd v Belokoski [2017] NSWWCCPD 15 Date of Decision: 27 April 2017 Before: Deputy President Michael Snell File Number(s): A2-4346/15