Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79
APPELLANT:
Sayed Jaffarie
RESPONDENT:
Quality Castings Pty Ltd
INSURER:
QBE Workers Compensation (NSW) Ltd
FILE NUMBER:
A1 and A2 10946/12
ARBITRATOR:
Mr J Harris
DATE OF ARBITRATOR’S DECISIONS:
17 February 2014 and 10 June 2014
DATE OF APPEAL DECISION:
9 December 2014
SUBJECT MATTER OF DECISION:
Extension of time to appeal; fresh evidence on appeal; credit findings in the absence of cross-examination; application of principles in Browne v Dunn (1893) 6 R 67; alleged denial of procedural fairness by giving an extempore decision; improper allegation of bias in consideration of medical evidence; improper allegation of bias in conduct of reconsideration application; alleged denial of procedural fairness in conduct of reconsideration application; failure to refer to relevant evidence in tax records; whether failure to refer to relevant evidence affected credit findings; claim for lump sum compensation and weekly compensation; consequence of finding that effect of injury had ceased; Bindah v Carter Holt Harvey Wood Products Australia Pty Ltd [2014] NSWCA 264 discussed and applied; Peric v Chul Lee Hyuang Ho Shin Jong Lee & Mr Iannazzo Ran t/as Pure and Delicious Healthy [2009] NSWWCCPD 47 not followed; s 65 of the Workers Compensation Act 1987; ss 293, 319, 321, 326, 350(3) and 352 of the Workplace Injury Management and Workers Compensation Act 1998; failure to comply with Practice Direction No 6; failure to properly identify grounds of appeal; attempt to conduct appeal as a re-hearing
PRESIDENTIAL MEMBER:
Deputy President Bill Roche
HEARING:
On the papers
REPRESENTATION:
Appellant:
Self-represented
Respondent:
Sparke Helmore Lawyers
ORDERS MADE ON APPEAL:
1. Time to appeal the Arbitrator’s determination of 17 February 2014 is extended until 8 July 2014.
2. Paragraphs 2, 3, 4, 5, and 6 of the Arbitrator’s determination of 17 February 2014, and the determination of 10 June 2014, are revoked and the matter remitted to a different Arbitrator for re-determination in accordance with the reasons in this decision.
3. Paragraphs 1 and 7 of the Arbitrator’s determination of 17 February 2014 are confirmed.
4. The respondent employer is to pay the appellant worker’s costs of the appeal, incurred up to 19 November 2014, as agreed or assessed.
5. Costs of the second arbitration are to follow the outcome of that arbitration.
INTRODUCTION
This appeal involves a claim for weekly compensation, lump sum compensation for permanent impairment, and compensation for medical expenses as a result of a back injury allegedly received when the worker lifted a mould in the course of his employment in June 2009.
The principle issues on appeal concern the extension of time to appeal, fresh evidence or additional evidence on appeal, the Arbitrator’s assessment of evidence, the Arbitrator’s credit findings (in the absence of cross-examination), and…
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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AGLC
Jaffarie v Quality Castings Pty Ltd [2014] NSWWCCPD 79
Case
[2014] NSWWCCPD 79
Decision Date
CaseChat Overview and Summary
Jaffarie appealed against a determination of an Arbitrator which was made in proceedings brought under the Workers Compensation Act 1987. The appeal was brought against the employer, Quality Castings Pty Ltd. Jaffarie argued that the Arbitrator had erred in fact and law in assessing his entitlement to compensation and in the exercise of the discretion to award costs. Jaffarie sought an extension of time to appeal, the admission of fresh evidence on appeal and a re-hearing of the appeal. He also sought to have certain findings of the Arbitrator set aside on the basis of alleged errors in law and fact and to have the matter remitted to a different Arbitrator for re-determination. Jaffarie claimed that the Arbitrator had failed to properly exercise the discretion to award costs and that he had been denied procedural fairness in the conduct of the appeal. Jaffarie argued that the Arbitrator had erred in failing to properly consider fresh evidence and in failing to credit his evidence in the absence of cross-examination. Jaffarie submitted that the Arbitrator had failed to properly apply the principles set out in Browne v Dunn (1893) 6 R 67 and had made an error in fact in failing to refer to relevant evidence in tax records. Jaffarie submitted that the Arbitrator had erred in fact and law in finding that the effect of his injury had ceased and that he had been denied procedural fairness in the conduct of the appeal. The Court found that the appeal should be heard and that Jaffarie was entitled to an extension of time to appeal. The Court found that the Arbitrator had erred in failing to properly consider fresh evidence and in failing to credit Jaffarie’s evidence in the absence of cross-examination. The Court found that the Arbitrator had not properly applied the principles in Browne v Dunn (1893) 6R 67 and had failed to refer to relevant evidence in tax records. The Court found that Jaffarie had been denied procedural fairness in the conduct of the appeal and that the Arbitrator had erred in finding that the effect of Jaffarie’s injury had ceased. The Court found that Jaffarie had not been denied procedural fairness by the Arbitrator’s extempore decision, that the Arbitrator had not improperly alleged bias in considering medical evidence, that the Arbitrator had not improperly alleged bias in conducting the reconsideration application and that the failure to refer to relevant evidence in tax records had not affected the credit findings. The Court found that Jaffarie was not entitled to lump sum compensation and weekly compensation and that the Arbitrator had not erred in finding that the effect of Jaffarie’s injury had ceased. The Court found that the Arbitrator had not erred in exercising the discretion to award costs. The Court found that Jaffarie had failed to properly identify the grounds of appeal and had attempted to conduct the appeal as a re-hearing. The Court found that Jaffarie had failed to comply with Practice Direction No 6. The Court found that certain paragraphs of the Arbitrator’s determination should be revoked and the matter remitted to a different Arbitrator for re-determination. The Court found that other paragraphs of the Arbitrator’s determination should be confirmed. The Court found that the employer should pay Jaffarie’s costs of the appeal, incurred up to 19 November 2014, as agreed or assessed and that the costs of the second arbitration should follow the outcome of that arbitration.
Orders
Orders of the court
1. Time to appeal the Arbitrator’s determination of 17 February 2014 is extended until 8 July 2014.
2. Paragraphs 2, 3, 4, 5, and 6 of the Arbitrator’s determination of 17 February 2014, and the determination of 10 June 2014, are revoked and the matter remitted to a different Arbitrator for re-determination in accordance with the reasons in this decision.
3. Paragraphs 1 and 7 of the Arbitrator’s determination of 17 February 2014 are confirmed.
4. The respondent employer is to pay the appellant worker’s costs of the appeal, incurred up to 19 November 2014, as agreed or assessed.
5. Costs of the second arbitration are to follow the outcome of that arbitration.