Preston v Randwick City Council

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Preston v Randwick City Council & Ors [2012] NSWCA 178

Hearing dates:

7 June 2012

Decision date:

18 June 2012

Before:

Allsop P
Sackville AJA

Decision:

1. Application for leave to appeal dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

INTERLOCUTORY APPLICATION - Application for leave to appeal - Workers Compensation Commission dismissed appeal against consent orders made in proceedings before Commission constituted by an Arbitrator - Workplace Injury Management and Workers Compensation Act 1998, s 354(7A) - whether the Commission constituted by a Presidential member erred in law - whether applicant was denied procedural fairness - no denial of procedural fairness - leave to appeal dismissed

Legislation Cited:

Workplace Injury Management and Workers Compensation Act 1998 (NSW) - s 294, s 350(3), s 350(6), s 352(5), s 353(1), s 353(7), s 354(6), 354 (7A), s 375
Workers Compensation Commission Rules 2011 - r 15.3, r 15.9

Cases Cited:

Hall v Nominal Defendant [1966] HCA 36; 117 CLR 423
Markulin v Healthwoods Pty Ltd [2007] NSWWCCPD 76; DDCR 527
Sapina v Coles Myer Ltd [2001] NSWCA 71
Sorcevski v Steggles Pty Ltd (1991) 7 NSWCCR 315
Spears v Department of Ageing, Disability & Homecare of NSW [2010] NSWWCCPD 35
Wickstead v Browne (1992) 30 NSWLR 1

Category:

Interlocutory applications

Parties:

Stephen Frederick Preston (Applicant)
Randwick City Council (First Respondent)
Allianz Australia Workers' Compensation (NSW) Ltd (Second Respondent)

Representation:

Counsel:
Stephen Frederick Preston (in person) (Applicant)
Larry King SC (First and Second Respondents)
Solicitors:
Unrepresented (Applicant)
Ellison Tillyard Callanan (First and Second Respondents)

File Number(s):

2012/43089

 Decision under appeal 

Citation:

Preston v Randwick City Council [2012] NSWWCCPD 1

Date of Decision:

2012-01-10 00:00:00

Before:

Deputy President Kevin O'Grady

File Number(s):

A1 - 1686/11

Judgment

1. THE COURT: This is an application for leave to appeal from a decision of the Workers Compensation Commission ("Commission") constituted by a Presidential member (O'Grady DP). The Commission dismissed an appeal brought by the applicant against consent orders made by an Arbitrator on 22 August 2011. The orders were made by the Arbitrator in conformity with Heads of Agreement that had been signed by the applicant, his counsel and the representative of the respondent ("the Council").

1. The Commission made the order dismissing the appeal from the Arbitrator's decision under s 354(7A) of the Workplace Injury Management and Workers Compensation Act 1998 ("WIM Act"). This provision empowers the Commission to dismiss proceedings before it:

"before or during the conduct of the proceedings:

...

(b) if it is satisfied that the proceedings are frivolous or otherwise misconceived…