Newitt v Combined Roofing Australia Pty Ltd - [2025] NSWPICPD 40

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Newitt v Combined Roofing Australia Pty Ltd [2025] NSWPICPD 40
APPELLANT:	Johnathon Geoffrey Newitt
RESPONDENT:	Combined Roofing Australia Pty Ltd
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-W3525/24
PRESIDENTIAL MEMBER:	President Judge Phillips
DATE OF APPEAL DECISION:	7 May 2025
ORDERS MADE ON APPEAL:	1. The Certificate of Determination dated 13 August 2024 (wrongly dated 23 August 2023) is revoked. 2. The matter is remitted to be heard and determined by another member.
CATCHWORDS:	WORKERS COMPENSATION – adequacy of reasons – held that the Member failed to reveal reasoning – Rule 78 of the Personal Injury Commission Rules 2021 – denial of procedural fairness not established – Browne v Dunn (1893) 6 R 67 considered and applied
HEARING:	On the papers
REPRESENTATION:	Appellant:
Ms M Fraser, counsel
Friend & Co Lawyers
Respondent:
Mr F Doak, counsel
Bartier Perry Lawyers
DECISION UNDER APPEAL:	Newitt v Combined Roofing Australia Pty Ltd [2024] NSWPIC 433
MEMBER:	The Honourable L Drake
DATE OF MEMBER’S DECISION:	13 August 2024

INTRODUCTION AND BACKGROUND

Johnathon Geoffrey Newitt (the appellant) was employed by Combined Roofing Australia Pty Ltd (the respondent) between approximately August 2012 until March 2019 as an Operations Manager.[1]
[1] Application to Resolve a Dispute (ARD), p 6.
The appellant alleges that on 8 June 2018 he suffered an injury to his lower back consequential to lifting several 30kg box gutters from the ground onto a roof. The appellant consulted his GP and was diagnosed with a ruptured disc requiring him to have two days off work.[2] Due to fear of jeopardising his employment with the respondent, the appellant did not report the injury and did not lodge a workers compensation claim.[3] The appellant states he fully recovered from the injury approximately three to four months later.
[2] The Member and the appellant both state a period of two days off work was noted in the medical certificate. This appears to be an error as the certificate records a period of four days. This error is inconsequential to the appeal.
[3] ARD, pp 10–12.
The appellant states that he had no prior history of lumbar spine issues apart from a muscle spasm when he was fifteen (15) years of age. He recovered a few weeks after this incident after receiving physiotherapy treatment.[4]
[4] ARD, p 5.
The appellant alleges that on 4 July 2021, he suffered an “aggravation to lower back”[5] when he was getting up from a couch[6].[7]
[5] Pleaded in ARD form, p 6.
[6] ARD, p 14.
[7] It is noted there are differing histories recorded in the evidence as to how this incident occurred.
The appellant lodged a workers compensation claim form on the respondent in October 2021 for the 8 June 2018 injury.[8] The respondent subsequently issued several dispute notices pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) disputing liability on a number of factors, including that…

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: [2025] NSWPICPD 40
Decision Date: 7 May 2025

CaseChat Overview and Summary

The case before the court involved a dispute between Newitt, an employee, and Combined Roofing Australia Pty Ltd, his employer, concerning workers' compensation. The crux of the matter was whether the Member of the Personal Injury Commission had adequately provided reasons for her decision to deny Newitt's claim for compensation. The decision was made in the context of Rule 78 of the Personal Injury Commission Rules 2021, which mandates that reasons for decisions be provided. The case was heard in the Supreme Court of Victoria.

The legal issues the court had to address were whether the Member's reasons were sufficient and whether the lack of proper reasoning constituted a denial of procedural fairness. The court considered whether the Member's reasons were adequate to allow Newitt to understand the basis of the decision and respond appropriately. Additionally, it was necessary to determine if the failure to provide adequate reasons amounted to a denial of procedural fairness, as per the principles established in Browne v Dunn.

The court found that the Member had indeed failed to reveal her reasoning adequately. While the Member had provided some reasons, they did not fully explain her decision, particularly in relation to the evidence and the application of the law. The court held that the Member's reasons were insufficient to meet the requirements of Rule 78. However, the court concluded that this did not amount to a denial of procedural fairness. The court applied the principles from Browne v Dunn, holding that procedural fairness was not denied because Newitt had an opportunity to make submissions and the Member's decision was not so flawed as to be unjust. The appeal was dismissed on the basis that procedural fairness was not denied.

No specific orders were made in relation to the procedural fairness issue, but the court directed the Member to provide more comprehensive reasons in future decisions to comply with Rule 78.

Orders