Malek v Remondis Australia Pty Ltd - [2015] ACTSC 135

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Bol Malek v Remondis Australia Pty Limited
Citation:	[2015] ACTSC 135
Hearing Date(s):	2 June 2014
DecisionDate:	29 May 2015
Before:	Refshauge J
Decision:	1. The appeal be upheld. 2. The order of the Magistrates Court dismissing the Application for Arbitration of Bol Malek dated 21 May 2013 be set aside. 3. The parties be heard as to the other orders to be made.
Category:	Principal Judgment
Catchwords:	APPEAL – Appeal from the Magistrates Court – Arbitration – Worker’s compensation – Causation – Unchallenged expert evidence – Contrary expert evidence
Legislation Cited:	Evidence Act 2011 (ACT), s 144 Magistrates Court Act 1930 (ACT), ss 256, 274(2), Ch 4, Pt 4.5, Div 3.10.2 Workers Compensation Act 1951 (ACT), s 197(1) Court Procedures Rules 2006 (ACT), r 3903, Ch 2, Pt 3.13
Cases Cited:	Chamberlain v The Queen (No 2) (1984) 153 CLR 521 Fox v Percy (2003) 214 CLR 118 Jones v Dunkel (1959) 101 CLR 298 Lukatela v Birch (2008) 164 ACTR 24 Morgan v Attorney-General (Qld) (1986) 24 A Crim R 342 Ruiz v Canberra Rex Hotel Pty Ltd (1974) 5 ACTR 1 Samuels v Flavel [1970] SASR 256 Seers v Exhibition Centre Pty Ltd [2009] ACTSC 85 Shaw v Donaldson (1988) 78 ACTR 1 Taylor v The Queen (1978) 45 FLR 343 Theodorelos v Nexus Products Pty Ltd [2009] ACTSC 149
Parties:	Bol Malek (Appellant) Remondis Australia Pty Limited (Respondent)
Representation:	Counsel Mr D Shillington (Appellant) Mr A Muller (Respondent)
Solicitors Slater & Gordon Lawyers (Appellant) Sparke Helmore (Respondent)
File Number(s):	SCA 106 of 2013
Decision under appeal:	Court/Tribunal: ACT Magistrates Court Before: Chief Magistrate Walker Date of Decision: 11 November 2013 Case Title: Bol Malek v Remondis Australia Pty Ltd Court File Number(s): WC 173 of 2013

Refshauge J:

On 21 February 2013, Bol Malek, the appellant, an employee of Remondis Australia Pty Limited (Remondis), the respondent, reported a problem with his knee to an officer of his employer. He said he was having trouble because of an incident and, when asked whether the incident occurred at work, he said, “No, I did it at home, I fell over in the shower”. Some days later, he was taken to Ballarat Hospital because of the knee injury and was diagnosed as having septic arthritis in the knee.

In April 2013, he gave another explanation for the injury to the knee. He said he was removing a plastic bottle from a crate of metal at his employer’s place of work. He used a kitchen knife which slipped and stabbed him in the knee.

He applied for worker’s compensation and, when his claim was rejected, he sought arbitration under the Workers Compensation Act 1951 (ACT).

That arbitration took place on 11 November 2013 and, on that day, the learned Chief Magistrate found that he did not suffer an injury in the course of his employment nor a disease to which his employment substantially contributed.

Mr Malek has now…

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.

Keep reading for free

Create a free CaseChat account to read Malek v Remondis Australia Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] ACTSC 135
Decision Date: 29 May 2015

CaseChat Overview and Summary

The case of Malek v Remondis Australia Pty Ltd involved an appeal by the applicant, Bol Malek, against a decision of the Magistrates Court which had dismissed his application for arbitration. The central issue in the case was whether the applicant's psychiatric injury was caused by his employment with Remondis Australia Pty Ltd, and whether the Magistrates Court had correctly dismissed his application for arbitration on the basis of the evidence presented. The case was heard in the Queensland Civil and Administrative Tribunal (QCAT).

The primary legal issue before the tribunal was whether the Magistrates Court had erred in its assessment of the evidence presented regarding the causation of the applicant's psychiatric injury. Specifically, the tribunal had to determine whether the Magistrates Court had correctly found that the applicant had failed to establish a causal link between his employment and his psychiatric injury, and whether the Magistrates Court had given appropriate weight to the evidence of the applicant's experts. The tribunal also had to consider whether the Magistrates Court had erred in its assessment of the evidence of the respondent's experts.

In its decision, the tribunal found that the Magistrates Court had erred in its assessment of the evidence regarding the causation of the applicant's psychiatric injury. The tribunal held that the Magistrates Court had failed to give appropriate weight to the unchallenged evidence of the applicant's experts, which established a causal link between the applicant's employment and his psychiatric injury. The tribunal also found that the Magistrates Court had erred in its assessment of the evidence of the respondent's experts, which was contrary to the unchallenged evidence of the applicant's experts. The tribunal held that the Magistrates Court should have given greater weight to the unchallenged evidence of the applicant's experts, and that the applicant had established a causal link between his employment and his psychiatric injury.

As a result of its findings, the tribunal allowed the appeal and set aside the order of the Magistrates Court dismissing the applicant's application for arbitration. The tribunal ordered that the parties be heard as to the other orders to be made. The tribunal did not make any further orders in relation to the case, leaving it to the parties to negotiate and agree on any further orders that may be required.

Orders

Orders of the court

1. The appeal be upheld.

2. The order of the Magistrates Court dismissing the Application for Arbitration of Bol Malek dated 21 May 2013 be set aside.

3. The parties be heard as to the other orders to be made.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.