Safi v Australian Concert & Entertainment Security - [2007] NSWWCCPD 128

WORKERS COMPENSATION COMMISSION

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

CITATION:Safi v Australian Concert & Entertainment Security [2007] NSWWCCPD 128
APPELLANT: Jada Safi
RESPONDENT: Australian Concert & Entertainment Security

INSURER:Vero Workers Compensation
FILE NUMBER:  WCC17615-05
DATE OF ARBITRATOR’S DECISION:          1 March 2006
DATE OF APPEAL DECISION:  31 May 2007
SUBJECT MATTER OF DECISION:                Absence of transcript of arbitral proceedings; error of law; error of fact; weight of evidence; inadequate reasons for decision.
PRESIDENTIAL MEMBER:  Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION: Appellant:     Carroll & O’Dea Lawyers
Respondent: Turks Legal Lawyers

ORDERS MADE ON APPEAL: The decision of the Arbitrator, dated 1 March 2006, is revoked. The matter is remitted to another Arbitrator for determination afresh in accordance with these Reasons.

No order is made as to the costs of this appeal.

BACKGROUND

Ms Jada Safi, the Appellant Worker, was born on 14 December 1962. She commenced employment with Australian Concert & Entertainment Security (ACES), the Respondent Employer, on 3 June 2002 as a security guard.

Vero Workers Compensation (‘Vero’) was ACES’s Insurer at all relevant times.

Ms Safi claims that on 8 December 2004 she sustained an injury to her back while moving barricades at the Sydney Cricket Ground. There were no witnesses to the incident she describes. Ms Safi states that she informed her supervisor after finishing the task at hand.

Ms Safi states that on 26 December 2004 while at work, the pain in her back became unbearable. She informed a colleague who was present and then contacted her supervisor, Mr Cory McIntyre. Ms Safi completed the shift and went directly to see a doctor who provided her with a medical certificate (not a WorkCover certificate). She underwent an xray examination on 28 December 2004.

On 31 December 2004 Ms Safi attended work with a medical certificate (not a WorkCover certificate) certifying that she was unfit for work. She gave the certificate to Mr Anthony Chan who contacted Mr McIntyre. Ms Safi alleges that Mr McIntyre told Mr Chan that he was “sick of this” and asked Mr Chan to remove her from the site. Ms Safi left and did not return to work after this incident.

On 8 April 2005 Ms Safi submitted a workers compensation claim to Vero in relation to the injury allegedly sustained on 8 December 2004. On 16 May 2005 Vero notified Ms Safi that further liability for compensation benefits had been declined on the basis that her claim did not satisfy the provisions of section 9A of the Workers Compensation Act 1987 (‘1987 Act’).

Ms Safi lodged an ‘Application to Resolve a Dispute’ in the Workers Compensation Commission (‘the Commission’) on 14 October 2005 seeking weekly payments of compensation from 27 December 2004 to date and continuing, and medical expenses pursuant to section 60 of the 1987 Act.

Arbitration hearings were held on 8 February 2006 and 17 February 2006. The Arbitrator issued a ‘Certificate of Determination’ and a ‘Statement of Reasons…

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: [2007] NSWWCCPD 128
Decision Date: 31 May 2007

CaseChat Overview and Summary

In this appeal, Ms Jada Safi sought to overturn the decision of an Arbitrator who dismissed her claim for workers compensation in relation to an injury she alleged she sustained while employed as a security guard by Australian Concert & Entertainment Security (ACES). The primary issue before the court was whether the Arbitrator erred in his determination and if his reasons were adequate. The appeal was complicated by the absence of a transcript of the arbitral proceedings due to a computer failure within the Workers Compensation Commission. The court found that the absence of the transcript significantly impeded its ability to properly review the Arbitrator's decision and determine whether he had erred.

The court held that without the transcript, it could not adequately assess the weight given to the oral evidence, the adequacy of the Arbitrator's reasons, or whether he had considered all relevant evidence. The court noted that the Arbitrator had relied on some of the oral evidence in making his decision, and the absence of this evidence meant that the court could not fairly determine the appeal. The court emphasised that fairness in legal proceedings is not an abstract concept but a practical one, aimed at avoiding practical injustice. Consequently, the court was unable to determine the appeal on the papers or hold a formal hearing due to the missing evidence.

The decision of the Arbitrator was revoked, and the matter was remitted to another Arbitrator for a fresh determination. The court did not make any order regarding the costs of the appeal, given the unique circumstances of the case. The Registrar was directed to assign the matter to another Arbitrator with the least possible delay to ensure a fair and just resolution of Ms Safi's claim.

Orders