P & N Beverages Australia Pty Ltd v Hammoud - [2008] NSWWCCPD 102

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:			P & N Beverages Australia Pty Ltd v Hammoud [2008] NSWWCCPD 102
APPELLANT:			P & N Beverages Australia Pty Ltd
RESPONDENT:			Zakaria Hammoud
INSURER:			QBE Workers Compensation (NSW) Limited
FILE NUMBER:			WCC7593-07
DATE OF ARBITRATOR’S DECISION:			12 May 2008
DATE OF APPEAL HEARING:		17 September 2008
DATE OF APPEAL DECISION:			23 September 2008
SUBJECT MATTER OF DECISION:			Application to admit late documents; interests of justice; Part 10 Rule 10.3(3) of the Workers Compensation Commission Rules 2006.
PRESIDENTIAL MEMBER:			Deputy President Bill Roche
HEARING:			Oral
REPRESENTATION:			Appellant:	Mr Batten, instructed by QBE In House Legal
Respondent:	Mr Hanrahan, instructed by Keddies Lawyers
ORDERS MADE ON APPEAL:			Paragraphs one and five of the Arbitrator’s determination of 12 May 2008 are revoked and the following orders made: “1. The matter is remitted to a different Arbitrator for re-determination of Mr Hammoud’s claim for weekly compensation in accordance with the reasons in this decision. 2. The Respondent employer is to pay the Applicant worker’s costs of the second arbitration, regardless of the outcome.” Paragraphs two, three, four and six of the Arbitrator’s determination of 12 May 2008 are confirmed. Each party is to pay his or its own costs of the appeal.

INTRODUCTION

This matter concerns whether an Arbitrator’s decision to award weekly compensation should be revoked in circumstances where she refused to allow an employer to rely on several documents (including a DVD of the worker’s activities) attached to an Application to Admit Late Documents filed a few days before a second teleconference and 20 days before the arbitration.

BACKGROUND

Mr Hammoud was born in Lebanon in 1962 and is now 46 years old. He came to Australia in 1987. His efforts to find employment in Australia were unsuccessful and he remained at home for several years, caring for his partially disabled wife during her pregnancies. He first obtained employment in Australia when he started with P & N Beverages Australia Pty Ltd (‘P & N’) on 3 April 2002 as a casual process worker. His duties included lifting heavy boxes of bottled drinks from a production line and placing them onto pallets.

On 15 April 2002, Mr Hammoud injured his back and neck while lifting boxes in the course of his employment. He reported his injury to his supervisor and was sent him home. He has not returned to work since. He saw his general practitioner, Dr Chwah, on the same day complaining of severe back and neck pain. Because he was unaware of his rights, he did not claim compensation until his solicitor made a claim on his behalf on 8 June 2006.

P & N’s insurer, QBE Workers Compensation (NSW) Limited (‘QBE’), arranged for a factual investigation in March 2007 and for a medical examination with Dr Breit in August 2007. It denied the claim and issued a notice under section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the…

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: [2008] NSWWCCPD 102
Decision Date: 23 September 2008

CaseChat Overview and Summary

P & N Beverages Australia Pty Ltd sought to appeal against an arbitrator's decision that upheld a claim for weekly compensation made by Mr Hammoud. The primary issue in this case was whether the tribunal had the authority to admit late documents under the Workers Compensation Commission Rules 2006 and whether such admission would be in the interests of justice. The case was heard in the Workers Compensation Commission of Queensland.

The central legal issue was whether the tribunal had the discretion to admit late documents under Part 10 Rule 10.3(3) of the Workers Compensation Commission Rules 2006. This rule allows the tribunal to admit documents that were not produced within the time limits if it considers it appropriate in the interests of justice. The court had to determine if the tribunal exercised this discretion appropriately and whether the admission of the late documents was justified.

The court found that the tribunal had indeed exercised its discretion to admit the late documents, but the decision to do so was not supported by sufficient reasoning. The tribunal did not adequately explain why admitting the late documents was in the interests of justice, as required by the rule. Consequently, the court held that the tribunal's decision was flawed and remitted the matter to a different arbitrator for re-determination of Mr Hammoud’s claim for weekly compensation. Additionally, the court ordered that the employer was to pay the worker's costs of the second arbitration, irrespective of the outcome.

The final orders of the court revoked certain parts of the arbitrator's previous determination and confirmed others. The matter was remitted to a different arbitrator for re-determination of the claim. The employer was ordered to pay the worker's costs of the second arbitration. Each party was to bear its own costs of the appeal.

Orders

Orders of the court

Paragraphs one and five of the Arbitrator’s determination of 12 May 2008 are revoked and the following orders made:

“1. The matter is remitted to a different Arbitrator for re-determination of Mr Hammoud’s claim for weekly compensation in accordance with the reasons in this decision.

2. The Respondent employer is to pay the Applicant worker’s costs of the second arbitration, regardless of the outcome.”

Paragraphs two, three, four and six of the Arbitrator’s determination of 12 May 2008 are confirmed.

Each party is to pay his or its own costs of the appeal.

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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