Muscat v Connolly - [2006] NSWWCCPD 76

WORKERS COMPENSATION COMMISSION

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

CITATION:Muscat v Connolly [2006] NSWWCCPD 76
APPELLANT:  Les Muscat
RESPONDENT:  Paul John Connolly
INSURER:Uninsured
FILE NUMBER:  WCC 17122-04
DATE OF ARBITRATOR’S DECISION:          11 March 2005
DATE OF APPEAL DECISION:  5 May 2006
SUBJECT MATTER OF DECISION: ‘worker’; Schedule 1 Clause 2 of the Workplace Injury Management and Workers Compensation Act 1998; adequacy of reasons
PRESIDENTIAL MEMBER:  Acting Deputy President Anthony J Candy
HEARING:On the papers
REPRESENTATION:  Appellant:      Bamford Marcellos O’Connor, Solicitors
Respondent:   Everingham Solomons, Solicitors

ORDERS MADE ON APPEAL: The decision of the Arbitrator dated 11 March 2005 is confirmed.

The Appellant is to pay the Respondent’s costs of the appeal.

BACKGROUND TO THE APPEAL

On 1 April 2005 Les Muscat (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 11 March 2005.

The Respondent to the Appeal is Paul John Connolly (‘the Respondent’).

The Respondent was engaged, to use a neutral term, by the Appellant to work as a painter on 4 November 2002. The Appellant was himself a painter. After a couple of months working for the Appellant, the Respondent started to notice pain in his right shoulder with numbness going down his arm to his hand. He saw a doctor on 26 May 2003 and was off work from that date to 23 June 2003 and then from 30 June 2003 onwards.

THE DECISION UNDER REVIEW

The ‘Certificate of Determination’, dated 11 March 2005 records the Arbitrator’s orders as follows:
“1.That there be an award in favour of the First Respondent [Programmed Maintenance Services].
2.That the Second Respondent [Mr Muscat] pay to the Applicant weekly compensation at the rate of $542.30 per week from 26 May 2003 to 23 October 2003 pursuant to section 36 of the Workers Compensation Act 1987 and at the rate of $211.00 per week from 24 October 2003 to date and continuing pursuant to section 40 of the Workers Compensation Act 1987.
3.That the Second Respondent [Mr Muscat] pay the Applicant’s medical and hospital expenses pursuant to section 60 of the Workers Compensation Act 1987.
4.That the Second Respondent [Mr Muscat] pay the Applicant’s costs as agreed or assessed.
5.That the Third Respondent [WorkCover] cause the weekly payments referred to in Order 2 above, the hospital and medical expenses referred to in Order 3 above and the costs referred to in Order 4 above to be paid out of the Uninsured Liability Insurance Scheme Fund.”

It should be noted that the Certificate of Determination is expressed to record consent orders, however, the transcript of the hearing appears to indicate that this was not the case. The decision of the Arbitrator was given orally at the conclusion of the submissions on 3 March 2005.

The Appellant was the Second Respondent in the original proceedings. For completeness sake I should say that the First Respondent was a prior employer in whose favour…

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 Muscat v Connolly

Details

AGLC: Muscat v Connolly [2006] NSWWCCPD 76
Case: [2006] NSWWCCPD 76
Decision Date: 5 May 2006

CaseChat Overview and Summary

Muscat v Connolly was an appeal against a decision of the Workers Compensation Commission made by an Arbitrator. Les Muscat, the Appellant, sought leave to appeal against a decision dated 11 March 2005 by the Arbitrator, which was in favour of Paul John Connolly, the Respondent. The issues in dispute were whether the application to appeal was lodged within time, whether the Respondent was a ‘worker’ within the meaning of the Workplace Injury Management and Workers Compensation Act 1998, and whether the Respondent was a ‘deemed worker’ within the meaning of Schedule 1 Clause 2 of the 1998 Act. The appeal was lodged within 28 days of the Arbitrator’s decision, and the amount of weekly compensation awarded exceeded the sum of $5,000.00.

The Appellant argued that the Respondent was a contractor rather than a worker, citing the decision of the Court of Appeal in Ibrahim v Goldmark Jewellers Pty Limited (No. CA40653/92, 19 July 1995) as a relevant authority. The Appellant also submitted that the Arbitrator failed to consider each indicia raised and draw a conclusion as to the relationship between the parties. On the other hand, the Respondent relied on the principles established in two High Court cases, Stevens v Brodribb Sawmilling Co. Pty Limited (1986) 160 CLR 16 and Hollis v Vabu Pty Limited (2001) 207 CLR 21, to argue that the preponderance of the factual matters relating to employment pointed to the Respondent being a ‘worker’ within the definition in section 4 of the 1998 Act.

The court found that the appeal was lodged within time, and the reasons given by the Arbitrator were sufficient. The court concluded that the Respondent was a ‘worker’ within the meaning of the 1998 Act, and the relationship between the parties was one of employer and employee. The court also found that the Respondent was a ‘deemed worker’ under Schedule 1, clause 2 of the 1998 Act. The decision of the Arbitrator was confirmed, and the Appellant was to pay the Respondent’s costs as agreed or assessed.

Orders