Rocla Pty Limited v Seton - [2007] NSWWCCPD 114

WORKERS COMPENSATION COMMISSION

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

CITATION:Rocla Pty Limited v Seton [2007] NSWWCCPD 114

APPELLANT: Rocla Pty Limited

RESPONDENT: Roderick Leslie Seton

INSURER:Rocla Pty Limited (self insurer)
FILE NUMBERS:  WCC9479-03 and WCC8730-04
DATE OF ARBITRATOR’S DECISION:          15 November 2006
DATE OF APPEAL DECISION:  15 May 2007
SUBJECT MATTER OF DECISION:                Whether the Arbitrator properly determined afresh issues of ‘injury’ and ‘incapacity’ following remittance of the matter to him in accordance with the decision of Deputy President Byron in Rocla Industries Pty Limited v Seton [2006] NSWWCCPD 43.
PRESIDENTIAL MEMBER:  Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION:  Appellant:      Leigh Virtue & Associates
Respondent: Messenger & Messenger, Solicitors

ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 15
November 2006 is revoked.

2.The matter is remitted to another Arbitrator with priority for reconsideration and redetermination of all relevant issues in accordance with these reasons.
3.Rocla (the Appellant) is to pay Mr Seton’s (the Worker’s) costs of the appeal.
4.I make no order as to costs of the proceedings before the Arbitrator.

BACKGROUND TO THE APPEAL

On 11 December 2006, Rocla Pty Limited (‘Rocla’) (formerly described as ‘Rocla Industries Pty Limited’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision of a Commission Arbitrator dated 15 November 2006.

The Respondent to the appeal is Roderick Leslie Seton (‘Mr Seton’).

This matter has had an extraordinarily long history, and each of the parties have brought numerous applications before the Commission seeking resolution of the many matters in dispute between them. I do not propose to reiterate the history at length, since it has been more than adequately dealt with in the decision of Deputy President Byron in Rocla Industries Pty Limited v Seton [2006] NSWWCCPD 43 and related decisions (being Seton v Rocla Industries Pty Limited No 1 [2006] NSWWCCPD 44 and Seton v Rocla Industries Pty Limited No 2 [2006] NSWWCCPD 45).

The reasons and findings of Deputy President Byron are contained in the decision of Rocla Industries Pty Limited v Seton [2006] NSWWCCPD 43. For ease of reference, I shall refer to that decision simply as ‘Rocla 2006’.

In Rocla 2006, Deputy President Byron set out at length the history of the proceedings between the parties. Briefly, on 27 August 2004 an Arbitrator issued directions at a Teleconference joining proceedings No. WCC8730-04 (Mr Seton’s application for weekly benefits) and WCC9479-03 (Rocla’s application).

Those matters were listed for arbitration hearing on 13 October 2004 and 10 November 2004.

On 20 January 2005 a decision was made by an Arbitrator in relation to both those matters in favour of Mr Seton.

Both parties sought leave to appeal that decision of the Arbitrator, and these appeals were the subject of determination by Deputy President Byron on 16 March 2006 in Rocla 2006 (and the related matters to which I have referred).

In Rocla…

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 Rocla Pty Limited v Seton

Details

AGLC: Rocla Pty Limited v Seton [2007] NSWWCCPD 114
Case: [2007] NSWWCCPD 114
Decision Date: 15 May 2007

CaseChat Overview and Summary

Rocla Pty Limited sought leave to appeal against the decision of an arbitrator in the Workers Compensation Commission of New South Wales. The respondent, Roderick Leslie Seton, had previously been awarded workers' compensation by the arbitrator on the basis of an injury sustained during his employment with Rocla. The arbitrator had been directed by a Deputy President to reconsider and redetermine the issues of injury and incapacity, but Rocla contended that the arbitrator had failed to properly perform this task. The appeal was brought under section 352 of the Workplace Injury Management and Workers Compensation Act 1998. The appeal was allowed on the basis that the arbitrator had failed to properly reconsider and determine the issues of injury and incapacity, and what necessarily follows, in accordance with the evidence and the weight of evidence, as directed by the Deputy President. The matter was remitted to another arbitrator for reconsideration and redetermination. Rocla was ordered to pay the costs of the appeal.

Orders