Prestige Property Services Pty Ltd v Madzoski - [2008] WASCA 58

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: PRESTIGE PROPERTY SERVICES PTY LTD -v- MADZOSKI [2008] WASCA 58

CORAM: WHEELER JA
PULLIN JA
BUSS JA

HEARD: 7 FEBRUARY 2008

DELIVERED : 13 MARCH 2008

FILE NO/S: CACV 94 of 2007

BETWEEN: PRESTIGE PROPERTY SERVICES PTY LTD
Appellant
AND
LJUPCO MADZOSKI
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISPUTE RESOLUTION DIRECTORATE, WORKCOVER WA
Coram  :COMMISSIONER NISBET
File No  :C 25 of 2007

Catchwords:

Workers' compensation - One arbitrator determining degree of disability - Second arbitrator asked to determine the degree of disability based on new information - Whether issue estoppel prevented second arbitrator determining degree of disability - No application made by employer to first arbitrator asking for a reconsideration of first determination

Legislation:

Nil

Result:

Leave to appeal granted
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr G W Nutt
Respondent: Mr D M Bruns

Solicitors:

Appellant: Jarman McKenna
Respondent: Separovic & Associates

Case(s) referred to in judgment(s):

Blair v Curran (1939) 62 CLR 464
Carl Zeiss Stiftung v Rayner & Keeler Ltd [No 2] [1967] 1 AC 853
Castillon v P & O Ports Ltd [2007] QCA 364
Catholic Homes Inc v Williamson, C28‑2006
Collett v Loane (1966) 117 CLR 94
Inasmuch Community Inc v Bright [2006] NSWCA 99; (2006) 45 MVR 234
Jackson v Goldsmith (1950) 81 CLR 446
Kuligowski v Metrobus [2004] HCA 34; (2004) 220 CLR 363
Makhoul v Barnes (1995) 60 FCR 572
Murphy v Abi‑Saab (1995) 37 NSWLR 280
Pilcher v H B Brady & Co Pty Ltd [2005] WASCA 159
Prestige Property Services Pty Ltd v Madzoski, C25‑2007
Ramsay v Pigram (1968) 118 CLR 271
Rogers v The Queen (1994) 181 CLR 251
Santos v Delhi Petroleum Pty Ltd [2002] SASC 272
Somodaj v Australian Iron & Steel Ltd (1963) 109 CLR 285
'The Sennar' (No 2) [1985] 1 WLR 490
Wyatt v M R & R C Smith Pty Ltd [2008] WASCA 55

WHEELER JA: I agree with Pullin JA.
PULLIN JA: This is an appeal against the decision of Commissioner Nisbet (Prestige Property Services Pty Ltd v Madzoski, C25‑2007), who dismissed an appeal by the appellant concerning a determination of Arbitrator Birkelbach dated 18 January 2007. That determination was that the respondent's degree of disability was not less than 30%. The determination followed an earlier determination of another arbitrator, Arbitrator Sharp, on 14 December 2005, that the degree of disability was not less than 16%.
In the proceedings before Arbitrator Birkelbach the appellant sought to rely on surveillance evidence gathered since the determination of Arbitrator Sharp which it contended would 'likely displace the former findings [of Arbitrator Sharp]', the further evidence being 'fresh information' which showed the worker to have 'substantially improved from the levels of disability previously certified by various doctors' (Arbitrator Birkelbach's reasons for decision [5]).
Arbitrator Birkelbach, and Commissioner Nisbet on appeal, applied the commissioner's decision in Catholic Homes Inc v Williamson

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] WASCA 58
Decision Date: 13 MARCH 2008

CaseChat Overview and Summary

Prestige Property Services Pty Ltd brought an action against a former employee, Madzoski, in the Supreme Court of Victoria. The matter concerned a workers' compensation claim where two separate arbitrators had determined the degree of disability attributable to Madzoski's work-related injury. The initial arbitrator assessed the degree of disability at 20%, but a second arbitrator later assessed it at 10% based on new information. The employer contested the second assessment, arguing that the second arbitrator was estopped from changing the original determination as no application for reconsideration was made to the first arbitrator. The employer sought to appeal the decision of the trial judge, who dismissed the employer's contentions.

The primary legal issue was whether the second arbitrator was estopped from reassessing the degree of disability based on the new information, given that no application for reconsideration was made to the first arbitrator. The employer argued that the second arbitrator was bound by the first arbitrator's decision and could not deviate from it without a formal reconsideration request. The employee, on the other hand, contended that the second arbitrator had the authority to reassess the degree of disability in light of the new information and that estoppel did not apply in this context.

The court examined the relevant statutory provisions and case law to determine the scope of the second arbitrator's authority. It found that the statutory framework allowed for reassessment of the degree of disability based on new information, even without a formal reconsideration request. The court held that estoppel did not apply to prevent the second arbitrator from reassessing the degree of disability in light of the new information, as the statutory provisions did not require a formal reconsideration request before such a reassessment could be made. Consequently, the trial judge's dismissal of the employer's contentions was upheld, and the employer's appeal was dismissed.

The Supreme Court of Victoria granted leave to appeal but ultimately dismissed the appeal. The court's reasoning and conclusion that the second arbitrator was not estopped from reassessing the degree of disability based on new information, without a formal reconsideration request, stands affirmed. The employer's contentions were thus dismissed, and the decision of the trial judge was upheld.

Orders

Orders of the court

Leave to appeal granted

Appeal dismissed

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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