Miles v ACE Semi Trailer Sales Pty Ltd - [2007] NSWWCCPD 145

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Miles v Ace Semi Trailer Sales Pty Limited [2007] NSWWCCPD 145

APPELLANT:  Jason Miles
RESPONDENT:  Ace Semi Trailer Sales Pty Limited
INSURER:Employers Mutual NSW Limited
FILE NUMBER:  WCC11442-06
DATE OF ARBITRATOR’S DECISION:          20 November 2006
DATE OF APPEAL DECISION:  25 June 2007
SUBJECT MATTER OF DECISION:                Absence of transcript of arbitral proceedings.
PRESIDENTIAL MEMBER:  Acting Deputy President Kevin O’Grady
HEARING:On the papers
REPRESENTATION:  Appellant:      Beilby Poulden Costello
Respondent:   Edwards Michael Moroney

ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 20 November 2006 is revoked and the matter is remitted to another Arbitrator for determination afresh in accordance with these Reasons.

Costs of the original conciliation/arbitration hearing, and of the appeal, to follow the final costs order when the matter is determined afresh.

BACKGROUND TO THE APPEAL

On 14 December 2006 Jason Miles (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 20 November 2006.

The Respondent to the Appeal is Ace Semi Trailer Sales Pty Limited (‘the Respondent’).

The Appellant, who was born on 22 October 1968, is a married man and the father of three children. The Appellant and his wife are presently separated and the children of the marriage reside with the Appellant and are totally dependent upon him. The Appellant commenced employment with the Respondent in October 2001 as a Truck and Trailer Motor Body Builder.

On 10 July 2002, whilst in the course of his employment with the Respondent, the Appellant suffered a severe injury which resulted in complete T12 paraplegia. The Appellant has received intensive medical treatment, has undergone a rehabilitation program at the Spinal Unit at Prince Henry Hospital and is reliant upon a wheelchair to enable mobility.

The Appellant, as part of his rehabilitation program, commenced a return to work program with the Respondent in approximately 2003. The Appellant was trained to perform what is described as “paper work” and his working hours were increased gradually over a period of approximately 6 months at the end of which period the Appellant was performing 6 hours work per day, 5 days per week with the Respondent.

The Appellant performed these clerical duties until 10 March 2006. Until that date the Appellant received wages from the Respondent and it appears that during the 12 months immediately before 10 March 2006 the Appellant was working 35 hours per week. The Respondent’s Workers Compensation Insurer had supplemented his income by the voluntary payment of $265 per week pursuant to section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’). I note that weekly payments in the sum of $265 a week by the Insurer have continued since the Appellant’s cessation of work in March 2006.

The circumstances leading to the Appellant’s cessation of work concerned the Appellant’s absence from work on Friday 3 March 2006 which had occurred without notice to the…

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: [2007] NSWWCCPD 145
Decision Date: 25 June 2007

CaseChat Overview and Summary

Miles v ACE Semi Trailer Sales Pty Ltd involves an appeal by Jason Miles against a decision of the Workers Compensation Commission, specifically an arbitrator's decision dated 20 November 2006. Miles, who suffered a severe injury in 2002, was employed by ACE Semi Trailer Sales Pty Ltd as a truck and trailer motor body builder. After a period of rehabilitation, he returned to work in a clerical capacity. However, his employment was terminated following a dispute, and he sought workers' compensation benefits. The key issues in the appeal relate to the absence of a transcript of the arbitral proceedings, the admissibility of certain evidence, and the application of statutory provisions concerning workers' compensation.

The court was required to decide whether the absence of a transcript of the arbitral proceedings was a procedural error that invalidated the Arbitrator's decision, whether the Arbitrator properly admitted certain evidence, and how the statutory provisions concerning workers' compensation were correctly applied in this case. The Appellant argued that the absence of a transcript deprived the Commission of the ability to properly consider the appeal and effectively denied him his right of appeal. The Respondent conceded the absence of a transcript but argued that the error was technical and did not reflect any neglect on the part of the Arbitrator.

The court concluded that the absence of a complete record of the proceedings impeded the conduct of the appeal to such an extent that a fair review could not be conducted. The court emphasized the importance of a proper record for the right of appeal and the exercise of powers under the relevant legislation. It noted that while some issues could be reviewed based on the available material, the absence of a transcript significantly impaired the ability to fairly assess the credit and presentation of witnesses and other contested evidence. Consequently, the court revoked the Arbitrator's decision and remitted the matter to another Arbitrator for a fresh determination.

The court also considered the implications of the absence of a transcript on the conduct of the appeal, the right to natural justice, and the duty of the Arbitrator to maintain a proper record of proceedings. The decision underscored the importance of a complete record in ensuring a fair and just determination of the appeal.

Orders