New South Wales
Court of Appeal
CITATION: Sapina v Coles Myer Limited [2009] NSWCA 71 HEARING DATE(S): 12 March 2009
JUDGMENT DATE:
6 April 2009JUDGMENT OF: Allsop P at 1; Beazley JA at 72; Hoeben J at 1 DECISION: 1. Appeal allowed.
2. The orders of Acting President Byron be set aside.
3. Remit the proceedings to the Workers Compensation Commission constituted by a Presidential member to be dealt with according to law.
4. The respondent pay the appellant's costs of the appeal.CATCHWORDS: WORKERS' COMPENSATION – Workers Compensation Commission - review of an Arbitrator’s decision by Presidential Member – task of Presidential member is to decide what is the true and correct decision- Work Place Injury Management and Workers Compensation Act 1998 (NSW) ss 352 and 353 - WORDS AND PHRASES – “review” and "appeal ... by way of review" LEGISLATION CITED: Compensation Court Act 1984 (NSW)
Work Place Injury Management and Workers Compensation Act 1998 (NSW)
Workers Compensation Act 1987 (NSW)CATEGORY: Principal judgment CASES CITED: Agfa-Gavaert Ltd v Lee [1992] NSWCA 4
Akora Holdings Pty Ltd v Ljubicic [2008] NSWCA 339
Allesch v Maunz [2000] HCA 40; 203 CLR 172
Aluminium Louvres & Ceilings Pty Limited v Zheng [2006] NSWCA 34
Australian Gas Light Co v Samuels (1993) 9 NSWCCR 616
Boston Clothing Co v Margaronis (1992) 27 NSWLR 580
Branir v Owston Nominees (No 2) Pty Limited [2001] FCA 1833; 117 FCR 424
Cook v Midpart Pty Ltd [2008] NSWCA 151
Costa v Public Trustee [2008] NSWCA 223
Denn v Midland Brick Co Pty Ltd (1985) 157 CLR 398
Department of Education & Training v Sinclair [2005] NSWCA 465
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 46 FLR 409
Duffy v Super Centre Development Corporation Ltd [1967] 1 NSWR 382
Duinker v St Vincent de Paul Society Aged and Special Services Limited (Lewisham Nursing Home) [2008] NSWCA 127
Fletcher International Exports Pty Ltd v Barrow [2007] NSWCA 244
Fox v Percy (2003) 214 CLR 118
Jeffery v Lintipal Pty Limited [2008] NSWCA 138
Litynski v Albion Steel Pty Limited (1994) 10 NSWCCR 287
Mansini v Director General of Education (1990) 6 NSWCCR 1
Ric Developments v Muir [2008] NSWCA 155
Schweppes Ltd v Archer (1934) 34 SR (NSW) 178
Siddick v WorkCover Authority of New South Wales [2008] NSWCA 116
South Western Area Health Service v Edmonds [2007] NSWCA 16
State Transit Authority of New South Wales v Chemler [2006] 249
State Transit Authority of New South Wales v Chemler [2007] NSWCA 249
Tan v National Australia Bank Ltd [2008] NSWCA 198
Watson v Hanimex Colour Services Pty Limited (1992) 8 NSWCCR 190TEXTS CITED: Aronson, Dyer and Groves, Judicial Review of Administrative Action, 3rd Ed (2004) PARTIES: Sylvia Sapina
Coles Myer LimitedFILE NUMBER(S): CA 40020/08 COUNSEL: S Gibb SC; S Moffitt (Appellant)
D C Campbell SC; AJ Hourigan (Respondent)SOLICITORS: Walker Legal (Appellant)
Lander & Rogers (Respondent)LOWER COURT JURISDICTION: Workers Compensation Commission of New…
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Details
- Case
- [2009] NSWCA 71
- Decision Date
CaseChat Overview and Summary
The appeal concerned a decision of the Workers Compensation Commission in New South Wales. The appellant, Sapina, sought to challenge a decision made by a Presidential Member of the Commission, which had reviewed an Arbitrator's determination. The respondent was Coles Myer Limited.
The central legal issue before the Court of Appeal was the nature and scope of the review power exercised by a Presidential Member of the Workers Compensation Commission under sections 352 and 353 of the *Workplace Injury Management and Workers Compensation Act 1998* (NSW). Specifically, the court had to determine whether the Presidential Member's task was to conduct a fresh hearing or to simply review the Arbitrator's decision for error. The court also considered the meaning of "review" and "appeal by way of review" in the context of the Act.
The Court of Appeal held that the task of a Presidential Member conducting a review under the relevant sections of the Act was to determine what was the "true and correct" decision. This involved undertaking a fresh consideration of the evidence and the law, rather than merely identifying errors in the Arbitrator's reasoning. The court found that the Acting President had erred in his approach to the review. Consequently, the appeal was allowed, the orders of the Acting President were set aside, and the proceedings were remitted to the Workers Compensation Commission for determination according to law by a Presidential Member. The respondent was ordered to pay the appellant's costs of the appeal.
The central legal issue before the Court of Appeal was the nature and scope of the review power exercised by a Presidential Member of the Workers Compensation Commission under sections 352 and 353 of the *Workplace Injury Management and Workers Compensation Act 1998* (NSW). Specifically, the court had to determine whether the Presidential Member's task was to conduct a fresh hearing or to simply review the Arbitrator's decision for error. The court also considered the meaning of "review" and "appeal by way of review" in the context of the Act.
The Court of Appeal held that the task of a Presidential Member conducting a review under the relevant sections of the Act was to determine what was the "true and correct" decision. This involved undertaking a fresh consideration of the evidence and the law, rather than merely identifying errors in the Arbitrator's reasoning. The court found that the Acting President had erred in his approach to the review. Consequently, the appeal was allowed, the orders of the Acting President were set aside, and the proceedings were remitted to the Workers Compensation Commission for determination according to law by a Presidential Member. The respondent was ordered to pay the appellant's costs of the appeal.
Orders
Orders of the court
1. Appeal allowed. 2. The orders of Acting President Byron be set aside. 3. Remit the proceedings to the Workers Compensation Commission constituted by a Presidential member to be dealt with according to law. 4. The respondent pay the appellant's costs of the appeal.
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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