John & Dave Bricklaying Pty Ltd v Campbell - [2005] NSWWCCPD 62

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:John & Dave Bricklaying Pty Ltd v Campbell [2005] NSW WCC PD 62
APPELLANT:  John & Dave Bricklaying Pty Ltd
RESPONDENT:  Glenn Perry Campbell
INSURER:GIO Australia Limited
FILE NUMBER:  WCC10699-03
DATE OF ARBITRATOR’S DECISION:          13 July 2004
DATE OF APPEAL DECISION:  5 July 2005
SUBJECT MATTER OF DECISION:                Whether appeal is competent; Appellant not a party to the proceedings.
PRESIDENTIAL MEMBER:  Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION:  Appellant:    Turks Legal
Respondent: Brydens Law Office

ORDERS MADE ON APPEAL: The Commission has no jurisdiction to determine the appeal.

BACKGROUND TO THE APPEAL

While employed as a bricklayer by JD & PA Lowey, (now ‘John & Dave Bricklaying Pty Limited’, (‘the Appellant’)), Glenn Perry Campbell, (‘the Respondent Worker/Mr Campbell’) suffered injuries, originally said to be on 19 December 1999 but amended by the Arbitrator to, and acknowledged by the parties as, 12 December 1998. Mr Campbell’s injuries were allegedly caused by a piece of hardwood timber weighing approximately 30 kg falling from where it had been leaning against a wall and striking his right calf while he was laying bricks. Mr Campbell claims that he fell and landed on his coccyx and since then, he has had trouble with his lower back. He says he was helped to his feet and continued working under threat of being fired. He states that his boss, Mr John Lowey also told him that, “he had no insurance to cover any compensation claim.” Mr Campbell’s treating doctor advised him that a muscle in his leg had torn, and that he was to strap it so that it could heal. He was prescribed painkillers. He then continued to work for a number of days after the accident before taking three weeks leave, during which time he claims that he was fired. Mr Campbell was re-hired soon after, but says he was again fired after three months, and believes this occurred because he was struggling with his leg.

The Arbitrator found at paragraph 21 of his ‘Statement of Reasons for Decision’ (‘Reasons’) that JD & PA Lowey was notified of the claim “in some form (J D Lowey Statement 21 October 2003 – ‘Lowey statement’ – paragraph 7) in late 1999.”

Mr Campbell no longer works for JD & PA Lowey, but continues to work as a bricklayer for other employers. As a result of the injuries, he claims that his marriage has suffered due to the stress involved. He says that his quality of life has also suffered as he is in constant pain; his leg will no longer support him when water-skiing, and he cannot ride either of his horses with his daughter due to pain in his calf muscle and lower back. He also claims that he has suffered considerable financial hardship as a result of wage losses caused by the injury.

On 5 June 2003 Mr Campbell lodged an ‘Application to Resolve a Dispute’ in…

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: [2005] NSWWCCPD 62
Decision Date: 5 July 2005

CaseChat Overview and Summary

In the matter of John & Dave Bricklaying Pty Ltd v Campbell, the appellant, John & Dave Bricklaying Pty Ltd, appealed against a decision of the Workers Compensation Commission, constituted by an arbitrator, concerning a claim made by the respondent, Glenn Perry Campbell. Campbell had lodged a claim for workers' compensation following an injury sustained while employed as a bricklayer by the appellant. The injury occurred when a piece of hardwood timber fell and struck Campbell's right calf. Campbell alleged that he fell and landed on his coccyx, subsequently experiencing lower back issues. The appellant contested the claim, arguing that Campbell was not a worker or a deemed worker as defined by the Workers Compensation Act 1987, and that the claim had not been duly made. The arbitrator, however, ruled in favour of Campbell, finding that the claim was properly made, that Campbell was a worker, and that the injury arose out of and in the course of his employment.

The primary legal issue before the court was whether the appellant had standing to bring the appeal, given that the appellant was not the entity named in the original claim. The court found that the correct entity to be named in the proceedings was JD & PA Lowey, not John & Dave Bricklaying Pty Ltd. Since the appellant was not a party to the original proceedings, it lacked the legal standing to appeal the arbitrator's decision. This finding was based on section 352(1) of the Workplace Injury Management and Workers Compensation Act 1998, which stipulates that only parties to the proceedings can appeal. As a result, the court concluded it had no jurisdiction to determine the appeal.

The court further directed that if JD & PA Lowey wished to appeal the decision, it could lodge a fresh application for leave to appeal, provided it met the criteria for an extension of time under Rule 77(8) and (9) of the Workers Compensation Rules 2003. The court emphasized that neither party would be required to resubmit any further documents regarding the substantive grounds of appeal if a fresh application was made. Instead, the focus would be on the application for an extension of time and any objections thereto. The court's decision was that it lacked jurisdiction to determine the appeal, and the correct entity, JD & PA Lowey, was free to lodge a new application for leave to appeal, subject to the conditions outlined.

Orders