Secretary, Department of Education v Dawking

Case [2024] NSWCA 4

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Secretary, Department of Education v Dawking [2024] NSWCA 4
Hearing dates: 5 December 2023
Date of orders: 31 January 2024
Decision date: 31 January 2024
Before: Gleeson JA at [1]
Mitchelmore JA at [100]
Kirk JA at [101]
Decision:

(1)   Appeal dismissed.

(2)   Appellant to pay the respondent’s costs.

Catchwords:

WORKERS COMPENSATION — Proceedings before Personal Injury Commission — Appeal against decision of presidential member in point of law — Where Deputy President confirmed determination of Member that employer liable to pay workers’ compensation to worker — Where worker suffered psychological injury — Where Member determined that employment was the main contributing factor to injury — Whether Deputy President erred in implicitly deciding there was evidence capable of supporting the Member’s factual finding — Whether Deputy President erred in implicitly deciding the Member did not misapply or misapprehend relevant legal principles on causation of injury — Whether Deputy President constructively failed to exercise jurisdiction by failing to respond to a substantial and clearly articulated argument

Legislation Cited:

Personal Injury Commission Act 2020 (NSW), s 52

Teaching Service Act 1980 (NSW)

Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Workers Compensation Act 1987 (NSW), ss 4, 9, 9A, 11A, 36, 37

Workers Compensation Legislation Amendment Act 2012 (NSW)

Workplace Injury Management and Workers Management Act 1998 (NSW), ss 294, 352, 353

Personal Injury Commission Rules 2021 (NSW), r 78

Cases Cited:

Amaca Pty Ltd (under NSW External Administration) v A B & P Constructions Pty Ltd [2007] NSWCA 220; (2007) Aust Torts Reports 81-910

Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] 78 CLR 353

AV v AW [2020] NSWWCCPD 9

Badawi v Nexon Asia Pacific Pty Ltd (t/as Commander Australia Pty Ltd) (2009) 75 NSWLR 503; [2009] NSWCA 324

Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430

Bjekic v State of New South Wales [2022] NSWPIC 214

Brambles Industries Limited v Bell [2010] NSWCA 162

Da Ros v Qantas Airways Limited [2010] NSWCA 89

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088

Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452

Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32

Ming v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209

Raulston v Toll Pty Ltd [2011] NSWWCCPD 25

Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33

SAS Trustee Corporation v Pearce [2009] NSWCA 302

Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

Tudor Capital Australia Pty Ltd v Christensen [2017] NSWCA 260

Western Districts Developments Pty Ltd and Turnpike Land Pty Ltd v Baulkham Hills Shire Council (2009) 75 NSWLR 706; [2009] NSWCA 283

Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24

Westport Insurance Corporation v Gordian Runoff Ltd (2011) 244 CLR 239; [2011]…

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Secretary, Department of Education v Dawking [2024] NSWCA 4
Case
[2024] NSWCA 4
Decision Date

CaseChat Overview and Summary

The Secretary, Department of Education (the appellant) appealed to the Court of Appeal of New South Wales against a decision of a Deputy President of the Personal Injury Commission. The Deputy President had confirmed a determination by a Member of the Commission that the appellant was liable to pay workers' compensation to the respondent, Ms. Dawking, who had suffered a psychological injury. The Member had found that Ms. Dawking's employment was the main contributing factor to her injury.

The appeal raised several legal issues for determination by the Court of Appeal. These included whether the Deputy President erred in implicitly deciding that there was evidence capable of supporting the Member's factual finding regarding the main contributing factor to the injury. Further, the Court considered whether the Deputy President erred in implicitly deciding that the Member had not misapplied or misapprehended the relevant legal principles concerning the causation of injury. Finally, the Court examined whether the Deputy President had constructively failed to exercise jurisdiction by failing to respond to a substantial and clearly articulated argument presented by the appellant.

Gleeson, Mitchelmore and Kirk JJA held that the Deputy President had erred in law by failing to adequately address the appellant's arguments concerning the Member's assessment of causation. The Court found that the Deputy President's reasons did not demonstrate that they had properly considered the appellant's submissions that the Member had misapplied the legal test for causation. Consequently, the Court concluded that the Deputy President had constructively failed to exercise their jurisdiction. The appeal was allowed, and the matter was remitted to the Personal Injury Commission for redetermination according to law.

Orders

Orders of the court

includes an award, interim award, order, determination, ruling, opinion and direction.

32.

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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