National Australia Bank Limited v Sharon Tan

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
*STATUS: Decision set aside on appeal: Tan v National Australia Bank Limited* [2008] NSWCA 198; (2008) 6 DDCR 363**
CITATION:		National Australia Bank Limited v Sharon Tan [2006] NSWWCCPD 116
APPELLANT:		National Australia Bank Limited
RESPONDENT:		Sharon Tan
INSURER:		Self insured
FILE NUMBER:		WCC8858-04
DATE OF ARBITRATOR’S DECISION:		16 February 2005
HEARING:	28 April 2006
DATE OF APPEAL DECISION:		8 June 2006
SUBJECT MATTER OF DECISION:		Conduct of proceedings; procedural fairness; weight of evidence; self-represented litigant; section 11A of the Workers Compensation Act 1987; section 260(5) of the Workplace Injury Management and Workers Compensation Act 1998.
PRESIDENTIAL MEMBER:		Dr Gabriel Fleming, Deputy President
REPRESENTATION:		Appellant:	Turner Freeman until September 2004 and then self‑represented
Respondent:	Vardanega Roberts Solicitors
ORDERS MADE ON APPEAL:		1. The decision of the Arbitrator, dated 16 February 2005, except in so far as it relates to costs, is revoked and the following decision is made in its place: “Award in favour of the National Australia Bank Limited 2. No order as to costs of this appeal.

APPEALS WERE LODGED BY EACH OF THE PARTIES AGAINST THE DECISION OF THE ARBITRATOR DATED 16 FEBRUARY 2005. BOTH APPEALS WERE DETERMINED TOGETHER. THE RELEVANT DETAILS IN RELATION TO BOTH APPEALS ARE SET OUT IN Tan v National Australia Bank [2006] NSWWCCPD 115.

REASONS FOR DECISION

All relevant information and reasons for the decision in this appeal are set out in Tan v National Australia Bank Limited [2006] NSWWCC PD 115.

ORDERS

The decision of the Arbitrator, dated 16 February 2005 except in so far as it relates to costs, is revoked and the following decision is made in its place:
Award in favour of the National Australia Bank Limited.

COSTS

No order as to the costs of the appeal.

Dr Gabriel Fleming
Deputy President
8 June 2006

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE

CaseChat Overview and Summary

In the case of National Australia Bank Limited versus Sharon Tan, the dispute arose from the bank's application to appeal a decision made by an Arbitrator in relation to a workers' compensation claim. The matter was heard in the Dust Diseases Tribunal of New South Wales. The central issue before the court was whether the Arbitrator had correctly applied the principles of procedural fairness and whether the weight of the evidence had been appropriately assessed, particularly given that Sharon Tan was self-represented.

The court needed to determine if the Arbitrator had erred in his application of the relevant sections of the Workers Compensation Act 1987 and the Workplace Injury Management and Workers Compensation Act 1998. Specifically, the court examined whether the Arbitrator had adequately considered section 11A of the Workers Compensation Act and section 260(5) of the Workplace Injury Management and Workers Compensation Act. The tribunal evaluated the procedural fairness of the hearing and the balance of probabilities concerning the evidence presented by both parties.

After a thorough review of the proceedings, the tribunal concluded that the Arbitrator had indeed erred in his assessment of the evidence and did not adequately apply the principles of procedural fairness. Consequently, the decision of the Arbitrator, except in relation to costs, was revoked. The tribunal found in favour of the National Australia Bank Limited, making a new award in their favour. The tribunal made no order as to the costs of the appeal.

Orders of the court

1. The decision of the Arbitrator, dated 16 February 2005, except in so far as it relates to costs, is revoked and the following decision is made in its place:

“Award in favour of the National Australia Bank Limited

2. No order as to costs of this appeal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established