Kenneth Don Swanson - [2005] NTMC 84

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CITATION: Kenneth Don Swanson [2005] NTMC 084

PARTIES: KENNETH DON SWANSON

NORTHERN TERRITORY OF AUSTRALIA

TITLE OF COURT: Work Health

JURISDICTION: Work Health – Alice Springs

FILE NO(s): 20214796

DELIVERED ON: 22 December 2005

DELIVERED AT: Alice Springs

HEARING DATE(s): 29th August 2005, 30th August 2005
31st August 2005, 1st September 2005

JUDGMENT OF: M Little SM

CATCHWORDS:

Work Health- Appeal from s.69 Cancellation of Payments-
Whether reasonable administrative action.

REPRESENTATION:

Counsel:
Worker: Mr Waters QC with Mr. Anderson
Employer: Mr. Tippet QC with Ms Collier

Solicitors:
Worker: Povey Stirk
Employer: Collier & Deane

Judgment category classification:
Judgment ID number: [2005] NTMC 084
Number of paragraphs: 73

IN THE WORK HEALTH COURT
AT ALICE SPRINGS IN THE NORTHERN
TERRITORY OF AUSTRALIA

No. 20214796

BETWEEN:

KENNETH DON SWANSON
Worker

AND:

NORTHERN TERRITORY OF AUSTRALIA
Employer

REASONS FOR JUDGMENT

(Delivered 22 December 2005)

Ms LITTLE SM:

1. Before the Work Health Court was an amended statement of claim filed by the Worker, Kenneth Swanson, dated 12 April 2005. The Northern Territory of Australia, through the Department of Education, is the Employer. The Employer cancelled payments of compensation pursuant to Section 69 of the Work Health Act on 30 May 2002, effective from 14 June 2002. The amended statement of claim appealed the cancellation of benefits pursuant to the Work Health Act. The Employer filed an amended defence and counter claim dated 28 July 2005 and the Worker replied to that document on 26 August 2005. A hearing of the matter was conducted over a period of four days and decision was reserved. Unless otherwise stated, all references to the Act or the Work Health Act relate to the Work Health Act of 1986 (NT). All references to the Rules relate to Rules made pursuant to the Work Health Act of 1986 (NT).

2. The hearing was conducted by way of oral and documentary evidence. The Worker objected to much of the evidence that the Employer sought to put before the Court. I took note of those objections and proceeded with the hearing. As part of this decision I will be required to rule as to whether that evidence is admitted or not. The decision as to what material will be admitted primarily relates to the questions raised by the Worker as to the amended defence and counter claim, and whether I find that the Worker opened up the issues to be ventilated.

3. I will first consider the amended statement of claim and the way that the Worker conducted its case. Counsel for the Employer argued that the way the Worker conducted his case, in addition to matters in the amended statement of claim, demonstrated that the Worker had gone beyond merely appealing the cancellation of compensation payments pursuant to s. 69 of the Work Health Act . That submission was disputed by counsel for the Worker. It is my finding that the way the case was conducted by the Worker did…

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

AGLC: Kenneth Don Swanson [2005] NTMC 84
Case: [2005] NTMC 84
Decision Date: 22 December 2005

CaseChat Overview and Summary

The case of Kenneth Don Swanson involved a dispute between the Worker, Kenneth Swanson, and the Northern Territory of Australia, regarding the cancellation of compensation payments under the Work Health Act. The hearing was conducted over four days, with both parties presenting oral and documentary evidence. The Worker appealed the cancellation of compensation payments, and the Employer sought to defend the cancellation while also making counter claims. The court had to determine the admissibility of evidence, the validity of the amended defence and counter claim, and whether the remedy sought by the Employer was within the court's power. The court found that the Worker's appeal was limited to the cancellation of compensation payments and did not go beyond that. The court also found that the amended defence and counter claim were valid and that the Employer was entitled to seek declarations and orders with respect to the Worker's capacity for employment. The court admitted the evidence presented by the Employer, and after considering the evidence, found that the cancellation of compensation payments was defective as it did not include the necessary qualifications and modifications for the Worker's return to work. The court ordered that the cancellation be defective to that extent but made no order with respect to other benefits as they were not the subject of the cancellation. The court also found that the Worker suffered a mental injury as a result of reasonable administrative action and that such injury was not a compensable injury under the Work Health Act. The court will hear any consequential applications at a later date.

Orders