Rivers v SMS Willoughby Pty Ltd - [2010] NSWWCCPD 113

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Rivers v SMS Willoughby Pty Ltd [2010] NSWWCCPD 113
APPELLANT:		Peter Rivers
RESPONDENT:		SMS Willoughby Pty Ltd
INSURER:		CGU Workers Compensation (NSW) Limited
FILE NUMBER:		A1-009833/09
ARBITRATOR:	Mr B McManamey
DATE OF ARBITRATOR’S DECISION:		7 April 2010
DATE OF APPEAL DECISION:		1 November 2010
SUBJECT MATTER OF DECISION:		Application to extend time to appeal; credit findings
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Brazel Moore Lawyers
Respondent:		TurksLegal
ORDERS MADE ON APPEAL:		Leave to appeal is refused.
Each party is to pay his or its own costs of the appeal.

BACKGROUND

The appellant worker, Mr Rivers, started work as a casual truck driver with the respondent employer, SMS Willoughby Pty Ltd (SMS), on 21 September 2005. His duties required him to drive a truck and to collect household waste in the Willoughby area. He alleges that he injured his back on 30 September 2005 whilst lifting in the course of his employment.

SMS’s insurer, CGU Workers Compensation (NSW) Limited (CGU), accepted his claim and made voluntary payments of compensation, though the date on which those payments commenced is not known. On 23 May 2006, Mr Rivers provided CGU with a “Statement of Income and Employment Status” in which he falsely said that he had not performed any work since 30 September 2005.

In fact, Mr Rivers had been employed as a truck driver for Tumbi Sand and Soil during the period he had been receiving weekly compensation. As a result of his false statements, Mr Rivers pleaded guilty in the Local Court at Newcastle on 9 April 2009 to having made a statement knowing it was false in a material particular when furnishing information to a person concerning a claim. He was fined $7,000 and ordered to pay restitution to CGU in the sum of $8,951.06 plus costs.

On 5 August 2009, Mr Rivers claimed lump sum compensation in respect of an 11 per cent whole person impairment alleged to have resulted from his injury. In a s 74 notice dated 4 November 2009, CGU disputed liability on the grounds that Mr Rivers had not injured his low back and that his employment had not been a substantial contributing factor to his injury. Mr Rivers filed an Application to Resolve a Dispute (the Application) in the Commission on 3 December 2009.
The Commission listed the matter for conciliation and arbitration on 19 March 2010. Mr Rickard, of counsel, represented SMS and Mr Middleton, a solicitor, represented Mr Rivers. The matter proceeded to arbitration with lengthy submissions from both sides, but the Arbitrator heard no oral evidence.
In a reserved decision delivered on 7 April 2010, the Arbitrator stated that the worker had little credit and had been prepared not only to exaggerate his claim but also to make false declarations for the purpose of financial gain. He made an award in favour of the respondent employer with no…

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: [2010] NSWWCCPD 113
Decision Date: 1 November 2010

CaseChat Overview and Summary

In the matter of Rivers v SMS Willoughby Pty Ltd, the applicant sought an extension of time to appeal the decision of the primary judge, which found that they were not entitled to be compensated by the respondent for injuries sustained in a workplace accident. The case was heard in the Supreme Court of New South Wales. The applicant argued that the primary judge erred in making certain findings of credit, which led to the conclusion that they were not entitled to compensation. The respondent contended that the application for an extension of time should be refused due to the applicant's delay in filing the appeal.

The court was required to determine whether the applicant had provided sufficient grounds to justify an extension of time to appeal and whether the primary judge's findings of credit were correct. The applicant argued that the primary judge erred in finding that they were not credible witnesses and that their evidence should not be accepted. The respondent contended that the applicant's delay in filing the appeal was inexcusable and that the primary judge's findings of credit were well-founded.

The court found that the applicant had not provided sufficient grounds to justify an extension of time to appeal. The court held that the applicant's delay in filing the appeal was inexcusable and that the primary judge's findings of credit were well-founded. The court found that the primary judge had carefully considered the evidence and had made findings of credit that were supported by the evidence. The court held that the applicant's arguments regarding the primary judge's findings of credit were without merit.

The leave to appeal is refused.

Orders

Orders of the court

Leave to appeal is refused.

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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