Navitas English Pty Ltd v Trinh

Navitas English Pty Ltd was the appellant and Trinh the respondent in this workers compensation matter, which was heard in the New South Wales Civil and Administrative Tribunal (NCAT). The dispute centred around a claim by the respondent for compensation due to psychological injury sustained in the course of her employment. The primary issue before the tribunal was whether the respondent could introduce new evidence on appeal, akin to a cross-appeal, and if the duty to make findings and the test for establishing psychological injury were correctly applied by the original decision-maker.

The court examined whether the respondent could raise grounds in opposition to the appeal that were not previously raised in the original proceedings. The tribunal considered BlueScope Steel Ltd v Markovski and Rail Corporation of New South Wales v B, concluding that the respondent could not introduce new evidence on appeal in the manner of a cross-appeal. Furthermore, the tribunal assessed the application for fresh evidence under CHEP Australia Limited v Strickland and determined that the evidence was not admissible as it did not meet the criteria for fresh evidence. The tribunal also considered the duty to make findings and the appropriate test for establishing psychological injury, applying the principles from State Transit Authority of New South Wales v Chemler.

The tribunal found that the original decision-maker failed to properly apply the duty to make findings and the test for psychological injury. As a result, the tribunal set aside the Certificate of Determination dated 27 July 2017 and remitted the matter for re-determination by another arbitrator. The tribunal denied the respondent's application to admit fresh evidence. Consequently, the tribunal ordered that the original decision be set aside and the matter be remitted for re-determination.