NT Tab Pty Ltd v Dicken - [2004] NTCA 8

[Back to Main List] [Back to NTCA & NTCCA 2004 List] NT TAB P/L v Dickin [2004] NTCA 8

PARTIES: NT TAB PTY LTD (ACN 092 644 831)

GAIL DICKIN

TITLE OF COURT: IN THE COURT OF APPEAL OF THE NORTHERN TERRITORY OF AUSTRALIA

JURISDICTION: CIVIL APPEAL FROM THE SUPREME COURT exercising Territory jurisdiction

FILE NO: AP27 of 2003

DELIVERED: 4 June 2004

HEARING DATE: 13 May 2004

CORAM: MILDREN, THOMAS and RILEY JJ

CATCHWORDS:

APPEAL - WORKERS COMPENSATION - ENTITLEMENT TO AND LIABILITY FOR COMPENSATION
Cessation of payments - appellant employer gave notice of intention to end weekly payments to worker - medical evidence indicates the worker fit for employment - whether employer estopped from finding the worker fit for employment - whether the magistrate failed to give reasons for counterclaim -whether notice given to worker complied with the s 69(4) of the Work Health Act - appeal allowed.
Work Health Act 1995 (NT) s 69(4)
Schell v Northern Territory Football League (1995) 5 NTLR 1; Disability Services v Regan (1998) 8 NTLR 73; Alexander v Gorey & Cole Holdings Pty Ltd (2002) 171 FLR 31; Mobasa Pty v Nikic (1987) 89 FLR 411, considered.
Clinton Douglas Rupe v Beta Frozen Products [2000] NTSC 71, distinguished.
O'Donel v The Commissioner for Road Transport and Tramways (New South Wales) (1938) 59 CLR 744; Whisprun Pty Ltd v Dixon [2003] HCA 48; Miller v Cameron and Others (1936) 54 CLR 572; Collins Radio Constructions Inc v Day (1998) 143 FLR 425, followed.
REPRESENTATION:

Counsel:
Appellant: P Barr
Respondent: S Southwood QC

Solicitors:
Appellant: Hunt & Hunt
Respondent: Priestly Walsh

Judgment category classification: C
Judgment ID Number: tho200404
Number of pages: 34

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

NT TAB P/L v Dickin [2004] NTCA 8
No. AP27 of 2003

BETWEEN:

NT TAB PTY LTD
(ACN 092 655 831)
Appellant

AND:

GAIL DICKIN
Respondent

CORAM: MILDREN, THOMAS and RILEY JJ

REASONS FOR JUDGMENT

(Delivered 4 June 2004)

Mildren J
[1] I have had the opportunity to read a draft of the Judgment prepared by Thomas J. I agree with her Honour, for the reasons which she gives, that the appeal should be allowed and with the orders she proposes.
Thomas J
[2] This is an appeal from the decision of a Judge of the Supreme Court who upheld an appeal from a decision of the Chief Magistrate sitting in the Work Health Court.
[3] The issue before the Work Health Court was an application by Ms Gail Dickin who is the respondent in these proceedings before the Court of Appeal, and is referred to hereafter as the worker, against her employers NT TAB Pty Ltd who is the appellant in these proceedings before the Court of Appeal and is referred to hereafter as the employer.
[4] The worker made application to the Work Health Court seeking continuation of weekly payments under the Work Health Act 1986.
[5]…

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: [2004] NTCA 8
Decision Date: 03 June 2004

CaseChat Overview and Summary

NT TAB Pty Ltd appealed to the Court of Appeal against a decision of Angel ACJ that the appellant's notice of cancellation of weekly compensation payments was invalid. Gail Dickin, the respondent, had been injured in a workplace accident on 28 November 1995. She claimed compensation for injuries including stress, depression and anxiety. She had been receiving weekly payments of compensation since her injury. On 8 January 2002, the appellant gave notice of its intention to cease payments of weekly compensation. The respondent appealed against this decision to the Work Health Court which was upheld by the Chief Magistrate. The respondent then appealed to the Supreme Court. Angel ACJ held that the notice of cancellation was invalid and reinstated weekly compensation payments. The appellant appealed to the Court of Appeal. The Court of Appeal allowed the appeal and held that the appeal Judge had erred in setting aside the decision of the Chief Magistrate. The Court of Appeal held that the notice of cancellation complied with the requirements of the Work Health Act. The Court of Appeal set aside the decision of Angel ACJ and restored the decision of the Chief Magistrate.

Orders