K & W Haulage Pty Ltd v BCL - [2023] NSWPICPD 7

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	K & W Haulage Pty Ltd v BCL [2023] NSWPICPD 7
APPELLANT:	K & W Haulage Pty Ltd
RESPONDENT:	BCL
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-W6677/21
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
DATE OF APPEAL DECISION:	8 February 2023
ORDERS MADE ON APPEAL:	1. Time to appeal the Member’s decision of 6 July 2022 is extended to 5 August 2022. 2. The Certificate of Determination dated 6 July 2022 is revoked. 3. The matter is remitted to another non-presidential member for re-determination.
CATCHWORDS:	WORKERS COMPENSATION – Extension of time to appeal – Yacoub v Pilkington (Australia Ltd [2007] NSWCA 290 applied; Ho v Professional Services Review Committee No. 295 [2007] FCA 388; Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2014] NSWCA 34; Gallo v Dawson [1990] HCA 30 – discussed and applied – perception of events – Attorney General’s Department v K [2010] NSWWCCPD 76 applied – duty to give reasons – Waterways Authority v Fitzgibbon [2005] HCA 57 applied – Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430; Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 considered and applied – failure to consider evidence State Rail Authority of New South Wales v Earthline Constructions Pty Ltd(In Liq) [1999] HCA 3; 160 ALR 588 – applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Ms L Goodman, counsel
Bartier Perry Lawyers
Respondent:
Mr C Tanner, counsel
Santone Lawyers
DECISION UNDER APPEAL
MEMBER:	Mr M McGrowdie
DATE OF Member’s DECISION:	6 July 2022

INTRODUCTION AND BACKGROUND

At the application of the applicant in the proceedings below, the name of the applicant (the respondent in the appeal) was de-identified as “BCL”. It follows that the de-identification is adopted in this appeal.
BCL (the respondent) commenced employment with the appellant, K & W Haulage Pty Ltd, as a truck driver in March 2020. The respondent’s employment was terminated on 5 November 2020. The letter of termination cited the respondent’s involvement in road accidents, failure to enter weigh bridges, failure to give notice of annual leave days and being involved in altercations with other workers on various sites while the respondent’s employment was still probationary.[1] The respondent commenced proceedings in the Fair Work Commission, which ultimately resolved. The respondent lodged a workers compensation claim dated 13 April 2021, alleging that he had suffered a psychological injury as a result of being bullied and harassed on the basis of his sexual orientation and his HIV status over the period of his employment with the appellant. He nominated the date of injury as 5 November 2020.[2]
[1] Reply to Application to Resolve a Dispute (reply), p 114.
[2] Application to Resolve a Dispute (ARD), pp 23–31.
The appellant denied liability for the claim, asserting that the respondent had not suffered an injury within the meaning of s 4…

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: [2023] NSWPICPD 7
Decision Date: 8 February 2023

CaseChat Overview and Summary

K & W Haulage Pty Ltd brought proceedings against BCL in the Supreme Court of New South Wales, seeking compensation under the Workers Compensation Act. The dispute arose after an employee of K & W Haulage Pty Ltd was injured in the course of their employment, and the company sought to challenge the decision of the Workers Compensation Commission regarding the assessment of damages. The legal issues before the court included whether the Workers Compensation Commission had failed to consider relevant evidence, and whether the applicant had a reasonable perception that the Commission had a duty to provide reasons for its decision.

The court considered whether the Workers Compensation Commission had exercised its discretion in a manner that was procedurally unfair, by failing to consider evidence that was before it. The court applied the principles from State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) and considered whether the failure to consider evidence amounted to a failure to exercise the discretion at all. The court also examined whether the applicant had a reasonable perception that the Commission had a duty to give reasons for its decision, and whether this perception was influenced by the decisions in Attorney General’s Department v K and Waterways Authority v Fitzgibbon. The court found that the Workers Compensation Commission had failed to consider relevant evidence and that the applicant had a reasonable perception that the Commission had a duty to provide reasons.

In conclusion, the court found that the applicant was entitled to an extension of time to appeal the decision of the Workers Compensation Commission. The court found that the Commission had failed to consider relevant evidence and that the applicant had a reasonable perception that the Commission had a duty to provide reasons. The court granted the application for an extension of time, and the matter was remitted to the Workers Compensation Commission for reconsideration. The court did not make any orders regarding the merits of the compensation claim.

Orders