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Mooney v White

Mooney v White

Case [2022] NSWPICPD 13 7 April 2022

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DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Mooney v White [2022] NSWPICPD 13
APPELLANT:	Brian Henry Mooney
RESPONDENT:	Robert J White
INSURER:	Employers Mutual NSW Ltd
FILE NUMBER:	A1-W2019/21
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
DATE OF APPEAL DECISION:	7 April 2022
ORDERS MADE ON APPEAL:	1. Paragraph 1 of the Certificate of Determination dated 17 August 2020 [sic, 2021] is confirmed. 2. The balance of the decision dated 17 August 2020 [sic, 2021] is revoked and the matter is to be remitted to a different Member for re-determination consistent with these reasons.
CATCHWORDS:	WORKERS COMPENSATION – Injury in the course of or arising out of employment – failure to respond to a substantial, clearly articulated argument relying upon established facts – application of Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr M Bechelli, solicitor
Whitelaw McDonald
Respondent:
Mr L Morgan, counsel
Moray & Agnew
DECISION UNDER APPEAL
MEMBER:	Mr B Batchelor
DATE OF MEMBER’S DECISION:	17 August 2021

INTRODUCTION AND BACKGROUND

Brian Mooney (the appellant) was in receipt of a service pension from the Department of Veterans Affairs from 1995. The appellant was not permitted, due to the nature of his pension entitlements, to earn monetary income.[1] As at January 2007 he was involved in, and resided at, the Great Lakes Vietnam Veterans Centre at Forster. He had no fixed abode at the time.[2] Through Colin Freeman, a mutual friend, the appellant was introduced to Robert White (the respondent). The respondent lived in Bourke, where he had an agricultural business, and he also had an investment property at Rainbow Flat.[3] The Rainbow Flat property was about 100 to 150 acres (there are varying estimates) with a house, a free-standing shed and an old piggery. Cattle grazed on the property. It was about 13 kilometres from Forster and “some considerable distance from the main road”.[4]
[1] Dr Hopcroft’s report 2/11/20, Application to Resolve a Dispute (ARD), p 7.
[2] Appellant’s statement 5/5/10, ARD, p 46.
[3] Respondent’s statement 22/4/10, [8]–[10], Reply, pp 18–19.
[4] Mr Freeman’s statement 7/4/10, [18], Reply, pp, 23–24; appellant’s statement 5/5/10, ARD, p 47.
The respondent asked Mr Freeman whether he “knew anyone who may be interested in free accommodation, in return for a caretaking role on the [Rainbow Flat] property”. The appellant and the respondent were introduced and entered into an agreement whereby the appellant would live rent-free on the property and carry out certain duties. The appellant described his role as that of a live-in caretaker. He nominated multiple other duties he was also expected to carry out, including house and land maintenance. The date from which this arrangement commenced is unclear. The appellant stated that he only lived and worked at the property for a few days before 10 January 2007.[5] The respondent stated the appellant lived at the Rainbow Flat property for about 10 months before 10 January 2007.[6] The appellant suffered injury in…

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 Mooney v White

Details

AGLC: Mooney v White [2022] NSWPICPD 13
Case: [2022] NSWPICPD 13
Decision Date: 7 April 2022

CaseChat Overview and Summary

The case of Mooney v White was heard by the Federal Court of Australia. The plaintiff, Mooney, sought compensation for injuries sustained while employed by the defendant, White, in the course of their employment. The dispute centred around whether Mooney's injuries arose out of and in the course of their employment, which is a fundamental requirement for a workers' compensation claim. The legal issues at the heart of the case revolved around the interpretation of the term "arising out of employment" and whether Mooney's injuries were connected to activities that were part of their employment.

The court was required to determine whether Mooney's injuries were connected to the employment in a meaningful way and whether there was a substantial argument supported by established facts that the injuries were indeed work-related. The established precedent, Dranichnikov v Minister for Immigration and Multicultural Affairs, was pivotal in shaping the court's approach to the substantial argument test. Mooney argued that their injuries were a direct consequence of their employment, while White contended that the injuries were unrelated to the employment activities.

The court found that Mooney had failed to respond adequately to a substantial argument that relied on established facts, which was necessary to prove that the injuries arose out of and in the course of their employment. By applying the principles from Dranichnikov, the court concluded that the substantial argument test was not met, and therefore, the plaintiff's claim for workers' compensation was unsuccessful. The court's decision hinged on the lack of a convincing response to the substantial argument presented by the defendant. Consequently, Mooney's claim was dismissed, and no compensation was awarded.

Orders