Negi v Nass Consulting Pty Ltd - [2021] NSWPICPD 8

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Negi v Nass Consulting Pty Ltd [2021] NSWPICPD 8
APPELLANT:	Seema Negi
RESPONDENT:	Nass Consulting Pty Limited
INSURER:	AAI Limited trading as GIO – Agent for the NSW WorkCover Scheme
FILE NUMBER:	A2-4439/17
MEMBER:	Mr P Sweeney
DATE OF MEMBER’S DECISION:	2 February 2018
DATE OF APPEAL DECISION:	27 April 2021
CATCHWORDS:	WORKERS COMPENSATION – Application for an extension of time – s 352(4) of the Workplace Injury Management and Workers Compensation Act1998, r 16.2(5) of the Workers Compensation Commission Rules 2011 – admission of additional evidence on appeal – whether exceptional circumstances exist and whether failure to admit new evidence would cause substantial injustice; CHEP Australia Limited v Strickland [2013] NSWCA 351; 12 DDCR 501 applied – alleged error of fact; application of Raulston v Toll Pty Ltd [2011] NSWWCCPD 25; 10 DDCR 156 – consideration of objective evidence when witness evidence unreliable; Devries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472 and Brines v Westgate Logistics Pty Ltd [2008] NSWWCCPD 43 considered and applied
PRESIDENTIAL MEMBER:	Deputy President Elizabeth Wood
HEARING:	On the papers
REPRESENTATION:	Appellant:
Self-represented
Respondent:
Ms K Balendra, counsel
Hicksons Lawyers
ORDERS MADE ON APPEAL:	1. The appellant’s application to adduce further evidence on the appeal is refused. 2. The application to extend time pursuant to r 16.2(5) of the Workers Compensation Commission Rules 2011 is refused.

INTRODUCTION

Ms Seema Negi (the appellant) appeals from a decision of Arbitrator Sweeney (as he then was) dated 2 February 2018. After the appellant’s case had been heard and determined and before the appeal in this matter was allocated to me, the New South Wales Workers Compensation Commission was abolished.[1] The matter became a matter within the Workers Compensation Division of the Personal Injury Commission by operation of the Personal Injury Commission Act 2020, from 1 March 2021.[2] The 2020 Act amended certain parts of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). Relevantly, the Arbitrators of the former Workers Compensation Commission became non-presidential members of the Personal Injury Commission, so that the decision-maker involved in the original proceedings and the reconsideration application became a member of the Personal Injury Commission. However, as at the time of the various orders made in the proceedings the decision maker bore the title of Arbitrator, in this decision he will be referred to by his former title of “Arbitrator.”
[1] Clause 3 of Div 2 of Pt 2 of Sch 1 to the Personal Injury Commission Act 2020 (the 2020 Act).
[2] Clause 12(1) of Div 2.3 of Pt 2 of the 2020 Act.

BACKGROUND

The appellant was employed as a Senior IT Business Analyst by Nass Consulting Pty Ltd (the respondent). The appellant’s employment arrangements were that the respondent, of which she was the sole director, would contract with other organisations for her to perform work for those organisations as a consultant…

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 8
Decision Date: 27 April 2021

CaseChat Overview and Summary

The case of Negi v Nass Consulting Pty Ltd involved an appeal by the appellant against a decision of the Workers Compensation Commission. The dispute centred around the refusal of the Commission to admit additional evidence and the denial of an extension of time for the appeal. The matter was heard in the Workers Compensation Appeals Tribunal. The primary legal issues that the Tribunal had to address were whether exceptional circumstances existed to justify the admission of additional evidence and whether the refusal to admit such evidence would result in a substantial injustice. Furthermore, the Tribunal needed to determine if the appellant had demonstrated grounds to extend the time for the appeal.

The Tribunal examined the relevant legislative provisions, including section 352(4) of the Workplace Injury Management and Workers Compensation Act 1998, and rule 16.2(5) of the Workers Compensation Commission Rules 2011. The Tribunal referred to the case of CHEP Australia Limited v Strickland, which established criteria for determining whether new evidence should be admitted on appeal. The Tribunal also considered the principle from Raulston v Toll Pty Ltd, which allows for the consideration of objective evidence when witness testimony is unreliable. Additionally, the Tribunal looked at the High Court's decision in Devries v Australian National Railways Commission and the case of Brines v Westgate Logistics Pty Ltd for guidance on the assessment of substantial injustice.

Upon reviewing the evidence and the applicable legal principles, the Tribunal concluded that the appellant had not demonstrated exceptional circumstances warranting the admission of additional evidence. The Tribunal found that the existing evidence was sufficient to make a determination on the appeal and that the refusal to admit new evidence would not result in a substantial injustice. Consequently, the Tribunal dismissed the appellant's application to adduce further evidence. Additionally, the Tribunal rejected the appellant's application to extend the time for the appeal, finding that no grounds existed to warrant an extension. The Tribunal’s decision was based on the lack of a compelling reason to deviate from the statutory time limits.

The Tribunal's final orders were that the appellant's application to adduce further evidence on the appeal was refused and the application to extend time pursuant to rule 16.2(5) of the Workers Compensation Commission Rules 2011 was also refused. This decision upheld the principles of procedural fairness and the importance of adhering to statutory time frames in workers compensation appeals.

Orders

Orders of the court

1. The appellant’s application to adduce further evidence on the appeal is refused.

2. The application to extend time pursuant to r 16.2(5) of the Workers Compensation Commission Rules 2011 is refused.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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