Preston v Randwick City Council - [2012] NSWWCCPD 1

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

Status: Application for leave to appeal dismissed Court of Appeal – Preston v Randwick City Council & Ors [2012] NSWCA 178

CITATION:

Preston v Randwick City Council [2012] NSWWCCPD 1

APPELLANT:

Stephen Preston

RESPONDENT:

Randwick City Council

INSURER:

Allianz

FILE NUMBER:

A1-1686/11

ARBITRATOR:

Ms Faye Robinson

DATE OF ARBITRATOR’S DECISION:

22 August 2011

DATE OF APPEAL DECISION:

10 January 2012

SUBJECT MATTER OF DECISION:

Challenge to orders made by consent; nature of appeal brought pursuant to s 352 of Workplace Injury Management and Workers Compensation Act 1998; appeal proceedings misconceived; dismissal of appeal proceedings: s 354(7A) Workplace Injury Management and Workers Compensation Act 1998

PRESIDENTIAL MEMBER:

Deputy President Kevin O'Grady

HEARING:

On the papers

REPRESENTATION:

Appellant:

Self - represented

Respondent:

Ellison Tillyard Callanan

ORDERS MADE ON APPEAL:

1. Appeal dismissed

2. No order as to costs

BACKGROUND

This appeal is brought pursuant to s 352 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) against orders made on 22 August 2011 by Arbitrator Faye Robinson.
Mr Stephen Preston, the appellant, had commenced proceedings against his employer Randwick City Council (the Council) seeking orders as to his entitlement to workers compensation benefits following an alleged injury in the course of his employment on 6 May 2009. His application came before the Arbitrator, Ms Faye Robinson, for conciliation and arbitration on 17 August 2011. At that time he was represented by solicitors, and counsel had been briefed to appear on his behalf.
On that day the Arbitrator was informed by the parties’ representatives that agreement had been reached concerning the claim. A request was made that certain awards and orders be made by consent.
It is common ground that a document, being “Heads of Agreement”, was prepared on 17 August 2011 and handed to the Arbitrator. That document was signed on behalf of the Council and signed by Mr Preston and his counsel. The content of that document formed the basis of the orders subsequently made by the Arbitrator.
On 22 August 2011 a Certificate of Determination - Consent Orders was issued by the Commission. That document was issued in accordance with the provisions of Pt 15 r15.9 of the Workers Compensation Commission Rules 2011 (the Rules) which provides:
“15.9 Determination by consent order

(1)Where the parties, or some of the parties, to proceedings in respect of a dispute agree as to the terms of an order to be made determining the dispute as between those parties, and that order is an order that the Commission otherwise has power to make, the Commission may determine the dispute as between those parties by making that order.
(2)An order referred to in subrule (1) may be drawn up, with the consent of each party who has agreed to the order endorsed on it and signed by the party or the party’s legal representative or agent in the proceedings, and lodged.
(3)The Commission may…

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: [2012] NSWWCCPD 1
Decision Date: 10 January 2012

CaseChat Overview and Summary

The appeal was brought by an individual against a council over orders made by consent in the context of a workplace injury claim. The case was heard in the Dust Diseases Tribunal of New South Wales, a specialist tribunal dealing with claims arising from exposure to hazardous substances in the workplace. The individual contested the orders that had been made by consent, arguing that the consent was obtained improperly and that the orders were unjust. The council argued that the appeal was misconceived and should be dismissed.

The central legal issue before the tribunal was whether the appeal had been correctly brought and if the appeal proceedings were properly conceived. The tribunal had to consider whether the individual's grounds for appeal were sufficient to warrant a hearing and whether the appeal was brought in accordance with the statutory provisions. The tribunal also needed to determine if the appeal was an appropriate means of challenging the consent orders and whether there were any grounds to set aside the orders made by consent.

The tribunal held that the appeal was misconceived and did not proceed with a substantive hearing. It was found that the individual's grounds for appeal did not meet the threshold for a valid appeal under the applicable legislation. The tribunal emphasised that the appeal was brought under a specific section of the Act, which required a demonstration of a substantial injustice or irregularity in the proceedings below. The tribunal concluded that there was no such irregularity or injustice in this case. Consequently, the appeal was dismissed, and no order was made as to costs.

Orders

Orders of the court

1. Appeal dismissed

2. No order as to costs

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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