Pages Hire Centre Kogarah v Chapman - [2009] NSWWCCPD 9

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Pages Hire Centre Kogarah v Chapman [2009] NSWWCCPD 9
APPELLANT:		Pages Hire Centre Kogarah
RESPONDENT:		Paul Dennis Chapman
INSURER:		Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER:		A1-5494/08
DATE OF ARBITRATOR’S DECISION:		23 September 2008
DATE OF APPEAL DECISION:		28 January 2009
SUBJECT MATTER OF DECISION:		Jurisdiction of the Commission to hear an application for a review under section 55 of the Workers Compensation Act 1987 where no notice served under section 74 of the Workplace Injury Management and Workers Compensation Act 1998; interlocutory orders; section 352(8) of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Sparke Helmore
Respondent:	Firths
ORDERS MADE ON APPEAL:		Paragraph one of the Arbitrator’s determination of 23 September 2008 is revoked and the matter is remitted to a different Arbitrator for re-determination of the claim. Paragraph two of the Arbitrator’s determination of 23 September 2008 is confirmed.
Each party is to bear his or its own costs of the appeal.

INTRODUCTION

The primary issue in this appeal is whether the Workers Compensation Commission has jurisdiction to hear an application by an employer for a review under section 55 of the Workers Compensation Act 1987 (‘the 1987 Act’) in circumstances where it had not first served a notice under section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). A secondary issue arises as to the need for an employer to properly particularise the basis of its claim for relief under section 55 of the 1987 Act.

BACKGROUND

Mr Chapman (‘the worker’) injured his right arm in the course of his employment with Pages Hire Centre (NSW) Pty Ltd (wrongly named as Pages Hire Centre Kogarah in the current proceedings) (‘the employer’) on 12 December 1993. On 11 October 2002, in proceedings in the former Compensation Court of NSW (‘the Court’), the employer consented to an award (‘the award’) providing for the payment of weekly compensation to Mr Chapman in the sum of $140.00 per week from 19 July 2001 to date and continuing under section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’) together with the payment of hospital and medical expenses under section 60 of the 1987 Act.

By letter dated 22 May 2007, the employer’s insurer, Allianz Australia Workers Compensation (NSW) Limited (‘Allianz’) advised Mr Chapman that, pursuant to section 54 of the 1987 Act, his weekly compensation payments would cease within six weeks of the date of the letter on the ground that he had not satisfied his job seeking obligations under section 52A(1)(a) of the 1987 Act.

By an Application to Resolve a Dispute (Matter No 4182 of 2007) (‘the first application’) registered with the Commission on 7 June 2007, the employer sought “to terminate Compensation Award dated 11 October 2002 pursuant to s 52A Workers Compensation Act 1987.” Mr Chapman’s solicitor, Firths, filed…

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: [2009] NSWWCCPD 9
Decision Date: 28 January 2009

CaseChat Overview and Summary

Pages Hire Centre Kogarah took legal action against Chapman in the context of a workers compensation dispute. The matter was before the Industrial Commission of New South Wales, where Chapman argued that the Commission did not have jurisdiction to hear Pages' application for a review of an arbitrator’s decision. The crux of Chapman's argument was that Pages had failed to serve a notice under section 74 of the Workplace Injury Management and Workers Compensation Act 1998, which Chapman contended was a prerequisite for the Commission to entertain the application. The court was tasked with determining whether the absence of such notice rendered the Commission’s jurisdiction to hear the application null and void and, if so, what the implications were for the resolution of the underlying dispute.

The primary legal issue revolved around the interpretation and application of sections 55 and 74 of the Workers Compensation Act 1987 and the Workplace Injury Management and Workers Compensation Act 1998. Specifically, the court had to ascertain whether the failure to serve a notice under section 74 deprived the Commission of its jurisdiction to hear the application for review and, if the jurisdiction was indeed affected, whether the correct course of action was to dismiss the application outright or to remit the matter to a different arbitrator for re-determination. The court also had to consider the role and effect of section 352(8) of the Workplace Injury Management and Workers Compensation Act 1998 in this context.

The court found that while the failure to serve a notice under section 74 was a procedural irregularity, it did not strip the Commission of its inherent jurisdiction to hear the application. The court ruled that the absence of the required notice did not preclude the Commission from considering the merits of the application. Consequently, the court revoked the first part of the arbitrator’s determination and remitted the matter to a different arbitrator for re-determination. The second part of the arbitrator’s determination was confirmed as it stood. The court's decision ensured that the procedural irregularity did not result in a miscarriage of justice, and the matter was appropriately addressed through re-determination rather than outright dismissal.

Orders

Orders of the court

Paragraph one of the Arbitrator’s determination of 23 September 2008 is revoked and the matter is remitted to a different Arbitrator for re-determination of the claim.

Paragraph two of the Arbitrator’s determination of 23 September 2008 is confirmed.

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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