Nott v The Western Stores Limited - [2007] NSWWCCPD 83

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Nott v The Western Stores Limited and ors [2007] NSWWCCPD 83
APPELLANT:  Robyn Nott
FIRST RESPONDENT:  The Western Stores Limited
SECOND RESPONDENT:  Grace Brothers Limited
THIRD RESPONDENT:  Myer Stores Limited
FIRST RESPONDENT’S INSURER:                 MMI Limited from 1966 to 30 June 1987 and
Allianz Australia Workers Compensation (NSW) Limited from 1 July 1987 to 11 August 1988

SECOND RESPONDENT’S INSURER:            Allianz Australia Workers Compensation (NSW) Limited
THIRD RESPONDENT’S INSURER:                Allianz Australia Workers Compensation (NSW) Limited from October 1993 to 17 September 1997
FILE NUMBER:  WCC8940-06
DATE OF ARBITRATOR’S DECISION:          11 October 2006
DATE OF APPEAL DECISION:  27 March 2007
SUBJECT MATTER OF DECISION: Leave to appeal; orders of an interlocutory nature; section 352 of the Workplace Injury Management and Workers Compensation Act 1998; whether compensation is “at issue” on appeal when an Application to Resolve a Dispute is struck out by Arbitrator.
PRESIDENTIAL MEMBER:  Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION:  Appellant:      McCabe Partners
FirstRespondent: No appearance
Second Respondent: Hicksons Lawyers
Third Respondent: No appearance

ORDERS MADE ON APPEAL: Leave to appeal the Arbitrator’s order dated 13 October 2006 is refused.
No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

On 1 November 2006 Robyn Nott (‘the Appellant Worker/Mrs Nott’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 13 October 2006.

The Respondents to the Appeal are The Western Stores Limited (‘the First Respondent’), Grace Brothers Limited (‘the Second Respondent’) and Myer Stores Limited (‘the Third Respondent’).

On 13 June 2006 the Appellant Worker filed an Application to Resolve a Dispute (‘the Application’) in the Commission claiming weekly compensation from 18 September 1997, lump sum compensation and medical expenses against all three Respondents.

The matter was listed for teleconference before a Commission Arbitrator on 6 September 2006 when the Arbitrator issued the following Directions to the parties:

“1.The Applicant will file and serve an amended Wages Schedule within 14 days.
2.The Respondent may file and serve a response to the Applicant’s amended Wages Schedule within 14 days of receipt of the Applicant’s amended Wages Schedule.
3.The Applicant will file and serve the documents numbered 9 to 13 inclusive in the index at page 101 of the Application within 14 days.

4.The Applicant will reply to the request for particulars made by Messrs Hicksons, Solicitors dated 17 July 2006 within 14 days.

5.The Applicant will request the WorkCover Authority to search and ascertain which insurer or insurers was on risk for the Respondents between 1996 and 11 August 1998, and will file and serve the result of such search.”

At a further teleconference on 11 October 2006 the Appellant Worker’s solicitor advised, as recorded in the Arbitrator’s Statement of Reasons – Ex tempore Orders, page one:

“1.In relation to Direction 1, a Wages Schedule had not been filed, but one had been faxed to the solicitor for…

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.

Keep reading for free

Create a free CaseChat account to read Nott v The Western Stores Limited and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2007] NSWWCCPD 83
Decision Date: 27 March 2007

CaseChat Overview and Summary

In the case of Nott v The Western Stores Limited, the appeal was brought before the Workers Compensation Commission to challenge a decision made by an Arbitrator. Robyn Nott, the Appellant Worker, sought leave to appeal the order that struck out her proceedings due to her failure to comply with several Directions issued by the Arbitrator. The First Respondent, The Western Stores Limited, and its insurer, were the primary entities against whom the Appellant sought compensation, while Grace Brothers Limited and Myer Stores Limited were also named as Respondents. The core issue before the court was whether the Arbitrator's order, which effectively nullified the proceedings, qualified as an interlocutory decision, thus barring the Appellant's right to appeal under the amended section 352(8) of the Workplace Injury Management and Workers Compensation Act 1998.

The court examined whether the amendments to section 352(8), which exclude interlocutory orders from the definition of 'decision', had retrospective effect. Given the clear language in Schedule 6 Part 18J Clause 5 of the Workers Compensation Act 1987, which states the amendments apply to claims made before the commencement of the changes, the court concluded that the amendments did indeed have retrospective operation. Furthermore, the court determined that the Arbitrator's order was interlocutory in nature, as it did not finally dispose of the Appellant's rights and allowed her to recommence proceedings without penalty. This conclusion was supported by authorities such as Little v State of Victoria and Wickstead v Browne, which highlight that an order striking out proceedings for failure to disclose a cause of action is typically interlocutory.

Additionally, the court assessed whether the monetary thresholds stipulated in section 352(2) of the 1998 Act were met. Since the Arbitrator's order did not award any compensation and did not affect the amount of compensation at issue on appeal, the court ruled that the appeal did not meet the required monetary thresholds. Consequently, leave to appeal was refused on this ground as well.

In summary, the court's reasoning hinged on the retrospective effect of the legislative amendments and the interlocutory nature of the Arbitrator's order, which nullified the proceedings without finally determining the Appellant's substantive rights. Furthermore, the absence of any compensation awarded or in issue on appeal precluded the appeal from meeting the monetary thresholds, leading to the refusal of leave to appeal.

Orders