Kinerson v Cafe 106 - [2005] NSWWCCPD 8

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Kinerson v Café 106 [2005] NSW WCC PD 8
APPELLANT:  Emerald Kinerson
RESPONDENT:  Café 106
INSURER:QBE Workers Compensation
FILE NUMBER:  WCC16197-03
DATE OF ARBITRATOR’S DECISION:          18 February 2004
DATE OF APPEAL DECISION:  15 February 2005
SUBJECT MATTER OF DECISION:                Failure to allow submissions; error in setting aside determination without entitlement; consideration of document not in evidence; failure to take into account evidence; lack of any or adequate reasons
PRESIDENTIAL MEMBER:  Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION:  Appellant:    Beilby Poulden Costello Lawyers
Respondent: QBE Workers Compensation (NSW) Limited

ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
No order is made as to costs.

BACKGROUND TO THE APPEAL

On 9 March 2004 Emerald Kinerson, the Appellant Worker, filed an Appeal Against Decision of Arbitrator in the Workers Compensation Commission, against a decision, dated 18 February 2004.

The Respondent to the Appeal is Café 106 (the Respondent Employer).

The Application dated 19 January 2004 for an award of “weekly benefits and medical, hospital or relates expenses” pursuant to section 60 of the Workers Compensation Act 1987 (the 1987 Act), was lodged in the Commission on 6 February 2004, under cover of a letter dated 5 February 2004. The matter came before the Arbitrator on 12 February 2004. There was no appearance of the Respondent and the Arbitrator proceeded to deal with the matter ex parte the Respondent. The proceedings were recorded and a transcript of those proceedings is before me.
The Arbitrator made a previous determination, set out in a Certificate of Determination dated 17 February 2004, in the following terms:

“The determination of the Commission in this matter is as follows:
1.The respondent is to pay the applicant’s reasonable s60 expenses.
2.The respondent is to pay the applicant’s costs as agreed or assessed.”

On 12 February 2004 a letter dated that day, from Ms Melissa Gillies, Barrister, was received in the Commission. In that letter, Ms Gillies said that she had been briefed to appear for Café 106 in the arbitration hearing on that day. She said that she attended the Commission premises prior to 10 am for this purpose. Upon arrival, Ms Gillies consulted with the electronic list located in the foyer of level 21. She noted that both boards indicated that the matter was listed for 11 am to 1 pm in conference room 2. She re-checked the board to ensure that she had noted the details correctly and then retired to prepare further for the arbitration proceedings.

Ms Gillies states that she returned to the foyer well before 11 am and signed on, as required, to indicate her presence in the Commission. She proceeded to conference room 2 and found no one there. She then contacted her instructing officer to obtain further instructions. During that conversation she was informed by the instructing officer that the solicitor for Ms Kinerson had telephoned her at about 10…

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.

Continue reading Kinerson v Cafe 106

Details

AGLC: Kinerson v Cafe 106 [2005] NSWWCCPD 8
Case: [2005] NSWWCCPD 8
Decision Date: 15 February 2005

CaseChat Overview and Summary

In the matter of Kinerson v Cafe 106, the appellant, Emerald Kinerson, appealed against a decision of the Workers Compensation Commission constituted by an arbitrator. The dispute involved the failure to allow Kinerson the opportunity to make submissions, an error in setting aside a determination without entitlement, consideration of a document not in evidence, failure to take into account evidence, and lack of adequate reasons. The case was determined on the papers by Deputy President Gary Byron.

The primary legal issues for the court to decide were whether the Arbitrator made an error by failing to allow Kinerson the opportunity to make submissions, setting aside a determination without appropriate entitlement, considering evidence not in evidence, failing to take account of evidence, and providing inadequate reasons. The Respondent argued that the Arbitrator had the power to rescind her decision and was entitled to do so in appropriate circumstances, and that Kinerson's contentions were incorrect.

The court found that the Arbitrator had the power to rescind her decision and was entitled to do so in appropriate circumstances. The letter of 12 February 2004 was not evidence, nor was it ever intended as evidence, in the substantive dispute before the Arbitrator. It was lodged in the Commission to point out the error made by the Commission and to request the Arbitrator to rescind her decision due to that error. An Arbitrator has a statutory obligation to provide adequate reasons for decision, which the Arbitrator did in this case. The court also found that the Appellant Worker failed to demonstrate that the reasons were inadequate or that there had been any failure on the part of the Arbitrator. The court concluded that there was no error of law, fact, or discretion on the part of the Arbitrator that should lead to a revocation of the decision of 18 February 2004, to rescind the substantive orders made on 17 February 2004.

The decision of the Arbitrator was confirmed, and no order was made as to costs. The Registrar should reallocate the substantive dispute to another Arbitrator for determination, as soon as possible, in accordance with the Arbitrator's directions.

Orders