N and F Logistics Pty Ltd v Waitoa - [2021] NSWPICPD 14

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	N & F Logistics Pty Ltd v Waitoa [2021] NSWPICPD 14
APPELLANT:	N & F Logistics Pty Ltd
FIRST RESPONDENT:	Teleah Waitoa
SECOND RESPONDENT:	Laundry Logistics Management Pty Ltd
THIRD RESPONDENT:	Workers Compensation Nominal Insurer
FOURTH RESPONDENT:	Monica Waitoa
APPELLANT’S INSURER:	Uninsured
SECOND RESPONDENT’S INSURER:	Employers Mutual NSW Ltd
FILE NUMBER:	A1-4246/19
PRINCIPAL MEMBER:	Ms J Bamber
DATE OF MEMBER’S DECISION:	23 April 2020
DATE OF APPEAL DECISION:	3 June 2021
CATCHWORDS:	WORKERS COMPENSATION – Application for an extension of time; s 352(4) of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act); r 16.2(5) of the Workers Compensation Commission Rules 2011; admission of late documents; application of CHEP Australia Ltd v Strickland [2013] NSWCA 351; 12 DDCR 501 – consideration of objective evidence when witness evidence unreliable; Devries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472 applied – principles applicable to disturbing a primary decision maker’s factual determination – Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 applied; burden of proof – Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 discussed – a decision should be given on the basis of issues that have been litigated in the course of the trial – Chanaa v Zarour [2011] NSWCA 199 applied; the obligation to notify a matter as disputed – ss 289 and 289A of the 1998 Act – Galstyan & Markaryan t/as Rite Price Hair Care v WorkCover Authority of NSW [2006] NSWWCCPD 130, Melides v Meat Carter Pty Ltd [2019] NSWWCCPD 48, Raniere Nominees Pty Ltd v Daley [2005] NSWCA 121; 5 DDCR 22; 66 NSWLR 594 distinguished
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr J Hallion, counsel
Kammoun Sukari lawyers
First Respondent:
Mr R Goodridge, counsel
Schofield King Lawyers
Second Respondent:
Mr P Perry, counsel
Lee Legal Group
Third Respondent:
Ms K Faapito, solicitor
Hall & Wilcox
Fourth Respondent:
Mr R de Meyrick, counsel
Caldwell Martin Cox
ORDERS MADE ON APPEAL:	1. The appellant’s application to extend time for the making of an appeal pursuant to r 16.2(5) of the Workers Compensation Commission Rules 2011 is refused.

INTRODUCTION AND BACKGROUND

This matter involves a claim for death benefits brought by Ms Teleah Waitoa (the first respondent) and Miss Monica Waitoa (the fourth respondent) in respect of the death of Mr Jeremy Waitoa. Mr Waitoa worked as a truck driver and drowned in a fatal accident when his truck hit a tree and rolled into a dam on 15 January 2019. The first respondent was married to Mr Waitoa and the fourth respondent was Mr Waitoa’s daughter from an earlier relationship.
The first respondent lodged a fatality claim form with the second respondent, Laundry Logistics Management Pty Ltd (LLM) on 1 February 2019. LLM disputed the claim in a notice issued pursuant to s 78 of the Workplace Injury Management…

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: [2021] NSWPICPD 14
Decision Date: 3 June 2021

CaseChat Overview and Summary

The case of N and F Logistics Pty Ltd v Waitoa involves a dispute in the Workers Compensation Commission of New South Wales, where the central issue was the admissibility of late-submitted documents and the application of specific statutory provisions. The respondent, Waitoa, sought an extension of time to admit certain documents, which were crucial to his case, but were submitted beyond the stipulated deadlines. N and F Logistics Pty Ltd, the appellant, contested the admissibility of these documents, arguing that they were not admissible under the relevant provisions of the Workplace Injury Management and Workers Compensation Act 1998 and the Workers Compensation Commission Rules 2011.

The legal issues that the court had to address included whether the Commission was justified in admitting the late documents, the criteria to be applied under section 352(4) of the 1998 Act and rule 16.2(5) of the 2011 Rules, and the principles governing the admissibility of objective evidence when witness evidence is deemed unreliable. The court was also required to consider the principles applicable to disturbing a primary decision maker’s factual determination, as established in Raulston v Toll Pty Ltd, and the burden of proof as articulated in Briginshaw v Briginshaw. Furthermore, the court had to examine the obligations concerning the notification of matters as disputed under sections 289 and 289A of the 1998 Act.

The court's reasoning and outcome were grounded in a detailed analysis of the statutory provisions and relevant case law. The court found that the Commission had the discretion to admit late documents under section 352(4) of the 1998 Act, particularly when objective evidence could supplement unreliable witness evidence. The decision in CHEP Australia Ltd v Strickland was cited to support the admissibility of the late documents. The court also considered the principles from Devries v Australian National Railways Commission, Raulston v Toll Pty Ltd, and Chanaa v Zarour, to determine whether the primary decision maker's factual findings should be disturbed. Ultimately, the court concluded that the Commission was correct in admitting the late documents and upheld the primary decision. The final orders confirmed the admissibility of the late documents and upheld the decision of the Commission.

Orders