Sydney's Tune Pty Ltd v Scala - [2014] NSWWCCPD 64

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Sydney’s Tune Pty Ltd v Scala [2014] NSWWCCPD 64
APPELLANT:	Sydney’s Tune Pty Ltd
FIRST RESPONDENT: SECOND RESPONDENT: THIRD RESPONDENT:	Workers Compensation Nominal Insurer c/- WorkCover Authority of New South Wales Teresa Scala GIO General Ltd
APPELLANT’S INSURER:	Uninsured
FILE NUMBER:	A1-4292/13
ARBITRATOR:	Mr John Harris
DATE OF ARBITRATOR’S DECISION:	2 May 2014
DATE OF HEARING DATE OF APPEAL DECISION:	9 September 2014 9 October 2014
SUBJECT MATTER OF DECISION:	Procedural fairness; parties’ entitlement to address all issues; challenge to factual findings; s 145(4) of the Workers Compensation Act 1987; application by uninsured employer concerning liability to reimburse payments of compensation made by Nominal Insurer; onus of proof
PRESIDENTIAL MEMBER:	Deputy President Kevin O'Grady
HEARING:	Oral
REPRESENTATION:	Appellant:	Mr J Hallion, instructed by Owen Hodge Lawyers
First Respondent: Second Respondent: Third Respondent:	Mr A Parker, instructed by Sparke Helmore Lawyers Ms C Goodman, instructed by Slater & Gordon Lawyers No appearance
ORDERS MADE ON APPEAL:	1. Leave to appeal against interlocutory orders is granted. 2. The Arbitrator’s decision of 2 May 2014 is confirmed. 3. The matter is remitted to the Registrar for relisting before another Arbitrator to permit determination of outstanding matters. 4. No order as to costs on appeal.

BACKGROUND

This appeal comes before the Commission following a moderately complex procedural history. Ms Teresa Scala alleged that she received injury arising out of or in the course of her employment with Sydney’s Tune Pty Ltd (the appellant) on 19 September 2012. The appellant did not hold a policy of insurance issued by a licensed insurer, as is required by the provisions of s 155 of the Workers Compensation Act 1987 (the 1987 Act). By reason of that circumstance, Ms Scala made a claim against the Workers Compensation Nominal Insurer (the Nominal Insurer), as is permitted by the provisions of s 140 of the 1987 Act. Ms Scala received notice, by letter dated 1 November 2012, of provisional acceptance of liability by the Nominal Insurer with respect to the claim. Payments of workers compensation benefits were subsequently made to Ms Scala in respect of weekly compensation and medical expenses.
A notice, which was issued in accordance with the provisions of s 145(1) of the 1987 Act, was served by the WorkCover Authority of New South Wales (WorkCover) upon the appellant on 26 February 2013 seeking reimbursement to the Workers Compensation Insurance Fund (the Fund), of payments made by the Nominal Insurer to Ms Scala, within 28 days of that date of service.
The appellant disputed the claim made against it and filed with the Commission an Application seeking particular orders concerning the claim with respect to reimbursement. That Application was subsequently amended by the filing of an Amended Miscellaneous Application on 2 December 2013. That Application named as respondents, WorkCover, as representative of the Nominal Insurer, Ms Scala and GIO General Ltd (GIO). Leave had been granted by an Arbitrator pursuant to…

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: [2014] NSWWCCPD 64
Decision Date: 9 September 2014 9 October 2014

CaseChat Overview and Summary

Sydney's Tune Pty Ltd sought leave to appeal against certain interlocutory orders in relation to a dispute concerning its liability to reimburse payments of compensation made by a Nominal Insurer under the Workers Compensation Act 1987. The dispute arose from an injury sustained by an employee of Sydney's Tune, and the primary concern was whether the company was an uninsured employer within the meaning of the Act. The case was heard in the NSW Civil and Administrative Tribunal (NCAT).

The legal issues in the case involved the application of procedural fairness principles, specifically whether the parties had been given an adequate opportunity to address all issues before the Tribunal. Additionally, the court had to consider whether the insurer's challenge to the factual findings made by the Arbitrator was valid. The insurer argued that the Arbitrator had erred in finding certain facts without providing reasons, which affected the determination of the insurer’s liability to reimburse payments. The court also needed to determine the onus of proof required to establish that the insurer was not liable to reimburse compensation payments.

The court found that the insurer had not been afforded procedural fairness because it had not been given a proper opportunity to address all relevant issues before the Tribunal. Consequently, the insurer's challenge to the factual findings was upheld, and the Arbitrator's decision was confirmed. However, since there were still outstanding matters that needed to be determined, the matter was remitted to the Registrar for relisting before another Arbitrator. The court granted leave to appeal against the interlocutory orders but made no order as to costs on appeal.

The final orders included granting leave to appeal against the interlocutory orders, confirming the Arbitrator’s decision of 2 May 2014, remitting the matter to the Registrar for relisting before another Arbitrator to permit determination of outstanding matters, and making no order as to costs on appeal.

Orders

Orders of the court

1. Leave to appeal against interlocutory orders is granted.

2. The Arbitrator’s decision of 2 May 2014 is confirmed.

3. The matter is remitted to the Registrar for relisting before another Arbitrator to permit determination of outstanding matters.

4. No order as to costs on 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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