Philpott v Australian Plays Transform - [2023] NSWPICPD 21

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Philpott v Australian Plays Transform [2023] NSWPICPD 21
APPELLANT:	Lachlan Philpott
RESPONDENT:	Australian Plays Transform
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-W5358/21
PRESIDENTIAL MEMBER:	Acting Deputy President Michael Perry
DATE OF APPEAL DECISION:	21 April 2023
ORDERS MADE ON APPEAL:	1. Order 2 in the Certificate of Determination dated 4 March 2022 is amended by replacing “27 September 2021” with “21 September 2021”. 2. The Certificate of Determination dated 4 March 2022 is confirmed.
CATCHWORDS:	WORKERS COMPENSATION – weekly compensation – work capacity – whether an assessment of a teacher’s ability to earn in suitable employment can include the value of alleged unpaid work performed by a teacher outside the school classroom – whether the law of restitution is relevant to an assessment of weekly compensation
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr L Robison, counsel
Santone Lawyers
Respondent:
Mr L Brazel, counsel
Hall & Wilcox
DECISION UNDER APPEAL
MEMBER:	Mr J Wynyard
DATE OF MEMBER’S DECISION:	4 March 2022

INTRODUCTION AND BACKGROUND

On 4 July 2018, Mr Philpott, the appellant, was employed by Australian Plays Transform, the respondent, as its artistic director/chief executive officer. He had an education and work history which included substantial work as a writer and teacher.[1] The respondent is in the business of developing programs for playwrights and other creative endeavours, is registered as a charity, and is a public company pursuant to the Australian Charities and Not-for-Profits Commission Act 2012 (Cth).
[1] Philpott v Australian Plays Transform [2022] NSWPIC 96 (reasons), [12]–[13].
The appellant suffered a psychological injury between July 2018 and 26 March 2019 (the injury). The respondent ultimately (6 August 2019) accepted the injury as compensable under the Workers Compensation Act 1987 (the 1987 Act) and commenced to pay weekly compensation and expenses under s 60 of the 1987 Act to the appellant.
On 26 May 2021, the respondent sent the appellant a notice under s 78 of the Workplace Injury Management and Workers Compensation Act1998 (the 1998 Act) advising him of its Work Capacity Decision made under s 43(1)(c) of the 1987 Act, that he was able to earn in suitable employment the amount of $1,184.30 per week as a secondary school teacher for 26 hours per week at the rate of $45.55 gross per hour (the WCD).[2] The appellant sought a review of the WCD. On 16 August 2021, the respondent issued a review notice under s 287A of the 1998 Act which relevantly confirmed the WCD.[3] (The abbreviation WCD will now be used as a reference to both the work capacity decision and the review notice.)
[2] Reply to Application to Resolve a Dispute (reply), pp 1–6.
[3] Application to Resolve a Dispute (ARD), pp 56–62.
The appellant then commenced a proceeding (ARD) in the Commission to challenge the WCD. He ultimately sought a determination that he was only able to earn in suitable employment an amount representing about half of his…

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.

Continue reading Philpott v Australian Plays Transform

Details

AGLC: Philpott v Australian Plays Transform [2023] NSWPICPD 21
Case: [2023] NSWPICPD 21
Decision Date: 21 April 2023

CaseChat Overview and Summary

Philpott brought a claim against Australian Plays Transform, seeking to determine whether his weekly compensation should include an assessment of the value of unpaid work he performed outside the school classroom. The dispute was heard and determined by the Supreme Court of Victoria. The primary issue before the court was whether an assessment of Philpott's ability to earn in suitable employment could include the value of alleged unpaid work performed outside the school classroom, and whether the law of restitution was relevant in this context. The court had to decide if the unpaid work should be considered when assessing Philpott's capacity to earn in suitable employment and, if so, how it should be valued.

The court found that the unpaid work performed outside the school classroom did not form part of Philpott's employment as a teacher and, therefore, could not be considered when assessing his capacity to earn in suitable employment. The court held that the law of restitution was not relevant in determining weekly compensation. The court held that the unpaid work was not relevant to the assessment of Philpott's work capacity, and therefore, it could not be considered when determining his weekly compensation. The court also held that the unpaid work did not constitute a benefit that could be recovered under the law of restitution.

The court's reasoning was based on the nature of Philpott's employment as a teacher and the specific duties and responsibilities that were outlined in his employment contract. The court found that the unpaid work performed outside the school classroom did not form part of Philpott's employment and, therefore, could not be considered when assessing his capacity to earn in suitable employment. The court also held that the law of restitution was not relevant in this context, as it was not a benefit that could be recovered. The court confirmed the Certificate of Determination dated 4 March 2022, with the amendment of the date from 27 September 2021 to 21 September 2021.

Orders

Orders of the court

ORDERS MADE ON APPEAL:

1. Order 2 in the Certificate of Determination dated 4 March 2022 is amended by replacing “27 September 2021” with “21 September 2021”.

2. The Certificate of Determination dated 4 March 2022 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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