NADARAJAMUTHALI v Community Enterprises Australia Limited - [2013] WADC 192

NADARAJAMUTHALI -v- COMMUNITY ENTERPRISES AUSTRALIA LIMITED [2013] WADC 192

Last Update: 09/12/2013

NADARAJAMUTHALI -v- COMMUNITY ENTERPRISES AUSTRALIA LIMITED [2013] WADC 192
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WADC 192
Case No:	APP:35/2013	Heard:	21 AUGUST 2013
Coram:	SCOTT DCJ	Delivered:	05/12/2013
Location:	PERTH	Supplementary Decision:
No of Pages:	23	Judgment Part:	1 of 1
Result:	Leave to appeal granted Appeal allowed
[Click here for Judgment in Adobe Acrobat Format ]

On Appeal from:	Jurisdiction: WORKERS' COMPENSATION ARBITRATION SERVICE (WA) Coram: ARBITRATOR NUNN File Number: A 1288 of 2011
Parties:	KULATHAYENDRAN NADARAJAMUTHALI COMMUNITY ENTERPRISES AUSTRALIA LIMITED
Catchwords:	Workers Compensation and Injury Management Act 1981 Appeal against arbitrator's decision to dismiss appellant's claim Claim for compensation for total incapacity Arbitrator's refusal to allow appellant to adduce doctor's late report Failure by arbitrator to make finding as to any period of total incapacity Remission to arbitrator to make a finding
Legislation:	Workers' Compensation and Injury Management Act 1981 s 247(7)
Case References:	Arnotts Snack Products v Yacob (1985) 155 CLR 171 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Ball v William Hunt and Sons Ltd (1912) AC 496 Hood v Royal Perth Hospital (Unreported, WASC, Library No 970658, 5 December 1997) McNair v Press Offshore Ltd (1997) 17 WAR 191, 198. Mitchell v Canal Rocks Beach Resort [2002] WASCA 331 Ross v Corruption and Crime Commission [2008] WACC-C15-2008 Specific Industrial Co Ltd v Jakovljevic [2008] WASCA 60 Thompson v Armstrong and Royce Pty Ltd (1950) 81 CLR 585

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION : PERTH CITATION : NADARAJAMUTHALI -v- COMMUNITY ENTERPRISES AUSTRALIA LIMITED [2013] WADC 192 CORAM : SCOTT DCJ HEARD : 21 AUGUST 2013 DELIVERED : 5 DECEMBER 2013 FILE NO/S : APP 35 of 2013 BETWEEN : KULATHAYENDRAN NADARAJAMUTHALI

Appellant

AND

COMMUNITY ENTERPRISES AUSTRALIA LIMITED

Respondent

ON APPEAL FROM:

Jurisdiction : WORKERS' COMPENSATION ARBITRATION SERVICE (WA)

Coram : ARBITRATOR NUNN

File No : A 1288 of 2011

Catchwords:

Workers Compensation and Injury Management Act 1981 - Appeal against arbitrator's decision to dismiss appellant's claim - Claim for compensation for

(Page 2)

total incapacity - Arbitrator's refusal to allow appellant to adduce doctor's late report - Failure by arbitrator to make finding as to any period of total incapacity - Remission to arbitrator to make a finding

Legislation:

Workers' Compensation and Injury Management Act 1981 s 247(7)

Result:

Leave to appeal granted
Appeal allowed

Representation:

Counsel:

Appellant : Mr J R Brooksby

Respondent : Mr C C Rimmer

Solicitors:

Appellant : Maurice Blackburn Lawyers

Respondent : Jarman McKenna

Case(s) referred to in judgment(s):

Arnotts Snack Products v Yacob (1985) 155 CLR 171
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Ball v William Hunt and Sons Ltd (1912) AC 496
Hood v Royal Perth Hospital (Unreported, WASC, Library No 970658, 5 December 1997)
McKay v Commission of Main Roads [2013] WASCA 135
McNair v Press Offshore Ltd (1997) 17 WAR 191, 198.
Mitchell v Canal Rocks Beach Resort [2002] WASCA 331

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

AGLC: NADARAJAMUTHALI v Community Enterprises Australia Limited [2013] WADC 192
Case: [2013] WADC 192
Decision Date

CaseChat Overview and Summary

The District Court of Western Australia granted leave to appeal and allowed the appeal by Kulathayendran Nadarajamuthali against the decision of the Arbitrator under the Workers' Compensation and Injury Management Act 1981. The Court remitted the matter to the arbitrator to determine whether the appellant was totally incapacitated for any period from 11 December 2011 and if so, for what period. The Court found that the Arbitrator had erred in not admitting the report of Dr Ansari dated 19 February 2013 into evidence and in not making a specific finding as to whether the appellant was totally incapacitated for any period from the date of the injury. The Court did not find that the Arbitrator fettered his consideration of the evidence by failing to make such a finding. The Court did not consider it proper to make a determination as to whether the appellant had proved total incapacity, and if so, for what period, as this would not be a proper course.

Orders