South Western Sydney Area Health Service v Edmonds (No 2)

[2007] NSWWCCPD 90

WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR FOLLOWING REMITTER FROM THE COURT OF APPEAL
STATUS: Remitter: This decision is a decision on remitter from the Court of Appeal decision in South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16; (2007) 4 DDCR 421
CITATION:		South Western Sydney Area Health Service v Edmonds (No 2) [2007] NSWWCCPD 90
APPELLANT:		South Western Sydney Area Health Service
RESPONDENT:		Linda Edmonds
INSURER:		Treasury Managed Fund
FILE NUMBER:		WCC8473-03
DATE OF ARBITRATOR’S DECISION:		18 March 2004
DATE OF FIRST APPEAL DECISION:		18 March 2005
DATE OF COURT OF APPEAL DECISION:		16 February 2007
DATE OF SECOND APPEAL DECISION:		5 April 2007
SUBJECT MATTER OF DECISION:		Remittal of matter to Commission from Court of Appeal.
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:		Turks Legal
Respondent:		Mattouks Law Group
ORDERS MADE ON APPEAL:		The Arbitrator’s decision and orders made on the 22 March 2004 are revoked and the following order made:
“The matter is remitted to a different Arbitrator to be re-determined in accordance with the reasons set out in the Court of Appeal’s decision dated 16 February 2007.”

BACKGROUND TO THE APPEAL

1. On 8 April 2004 South Western Sydney Area Health Service (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 18 March 2004.

1. The Respondent to the Appeal is Linda Edmonds (‘the Respondent Worker’).

1. Deputy President Fleming determined the appeal on 18 March 2005 when the Arbitrator’s decision was confirmed (South Western Sydney Area Health Service v Edmonds [2005] NSWWCCPD 18). The facts and background to the appeal are fully set out in that decision and will not be repeated here.

1. The Appellant Employer appealed to the Court of Appeal.  The appeal was heard on 1 March 2006 and decided in the Appellant Employer’s favour on 16 February 2007.  The Court of Appeal made the following orders:

“1.      Leave to appeal granted.

2.Appellant to file Notice of Appeal within seven (7) days of this order.

3.Appeal allowed.

4.Deputy President’s decision set aside.

5.Each party to bear their own costs of the proceedings before the Deputy President.

6.Matter remitted to the Commission constituted by a Presidential member for determination by the Commission in accordance with the decision of the Court.

7.Respondent to pay the costs of the appeal and to have a certificate under the Suitors Fund Act 1951 if otherwise qualified.”

1. McColl JA, with Tobias and Giles JJA agreeing, concluded at [142] “the consequence is that the impairment dispute will have to be re-determined by an Arbitrator”.

DECISION

1. In order to implement the Court of Appeal’s decision and orders, the appropriate determination by the Commission is:

“The Arbitrator’s decision and orders made on 22 March 2004 are revoked and the following order made:

1.The matter is remitted to a different Arbitrator to be re-determined in accordance with the reasons set out in the Court of Appeal’s decision dated 16 February 2007.”

COSTS

1. As per the order of the Court of Appeal, each party is to bear their own costs of the appeal to Deputy President Fleming.

Bill Roche

Deputy President  

5 April 2007

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE