Sydney Water Corporation v Singh - [2005] NSWWCCPD 92

WORKERS COMPENSATION COMMISSION

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

CITATION:Sydney Water Corporation v Singh [2005] NSW WCC PD 92
APPELLANT:  Sydney Water Corporation
RESPONDENT:  Harcharan Singh
INSURER:Self Insured
FILE NUMBER:  WCC11491-04
DATE OF ARBITRATOR’S DECISION:          8 March 2005
DATE OF APPEAL DECISION:  22 August 2005
SUBJECT MATTER OF DECISION: Sections 151A & 151C Workers Compensation Act 1987; election to commence proceedings in the District Court, and preclusion from commencing proceedings in the Workers Compensation Commission.
PRESIDENTIAL MEMBER:  Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION:  Appellant:    Astridge & Murray Solicitors
Respondent: Ticli Blaxland Lawyers

ORDERS MADE ON APPEAL: The decision of the Arbitrator, dated 8 March 2005, is revoked and the following decision is made in its place:

The Applicant is precluded from bringing his claim in the Workers Compensation Commission, having made an election under section 151A of the Workers Compensation Act 1987 to commence proceedings in the District Court.
No order is made as to costs of the appeal.

BACKGROUND TO THE APPLICATION TO APPEAL

On 24 March 2005 Sydney Water Corporation (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 8 March 2005.

The Respondent to the Appeal is Harcharan Singh (‘the Respondent/ Mr Singh’).

The Appellant is self-insured.

The basis of Mr Singh’s claim is that he fell from some scaffolding on 18 August 2001 in the course of his employment with the Appellant and received injuries as a result. Mr Singh claimed compensation for non-economic loss and made a threshold claim for work injury damages. On 26 November 2001 Mr Singh commenced proceedings against the Appellant for damages in the District Court at Parramatta, in respect of the same injury. Notice of injury was given on 20 August 2001 and a compensation claim was made on the same day. The Appellant filed a reply on 17 August 2004 submitting that Mr Singh had made an election to proceed in the District Court and therefore, he had no entitlement for an award of compensation in the Commission.

THE DECISION UNDER REVIEW

The Certificate of Determination, dated 8 March 2005 records the Arbitrator’s orders as follows:

“For the reasons set out in this statement, the decision in this matter is:

1. That the Application be referred to an Approved Medical Specialist or Specialists for the issue of a Medical Assessment Certificate.”

In arriving at his decision the Arbitrator stated, inter alia, at paragraphs 21 - 22:

“21.Section 151C prohibits the bringing of a claim prior to the expiration of six months except in defined circumstances that do not apply in this case. Consequently, I prefer the conclusion of Sheehan [sic] J in McQueeney v Raybreak Pty Ltd as referred to in submissions on behalf of the Applicant to the effect that the passing of six months is a condition precedent to bringing a claim and consequently the Claim by the Applicant…

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: [2005] NSWWCCPD 92
Decision Date: 22 August 2005

CaseChat Overview and Summary

Sydney Water Corporation appealed a decision of the Workers Compensation Commission to the President of the Commission against a decision made by an Arbitrator. The appeal related to a workers compensation claim made by Harcharan Singh, who alleged he was injured in the course of his employment with the Corporation. The issue in dispute was whether Mr Singh could bring his claim in the Workers Compensation Commission, having elected to commence proceedings in the District Court. The appeal was determined on the papers and the appeal was allowed.

The President of the Commission found that the Arbitrator had erred in finding that the claim brought by Mr Singh in the District Court at Parramatta was a nullity. The President found that the proceedings in the District Court were not a nullity, but were a valid election under section 151A of the Workers Compensation Act 1987. The appeal was upheld, and the decision of the Arbitrator was revoked. The applicant was precluded from bringing his claim in the Workers Compensation Commission, having made an election under section 151A of the Workers Compensation Act 1987 to commence proceedings in the District Court. No order was made as to costs of the appeal.

Orders