Tan v National Australia Bank Ltd (No 2)

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION
CONSTITUTED BY AN ARBITRATOR FOLLOWING REMITTER
FROM THE COURT OF APPEAL

STATUS: Determined on remitter: See Tan v National Australia Bank Ltd [2008] NSWCA 198

CITATION:

Tan v National Australia Bank Ltd (No 2) [2008] NSWWCCPD 95

APPELLANT:

Sharon Tan

RESPONDENT:

National Australia Bank Ltd

INSURER:

Self insured

FILE NUMBER:

WCC8858-04

DATE OF ARBITRATOR’S DECISION:

16 February 2005

DATE OF FIRST APPEAL DECISION:

8 June 2006

DATE OF COURT OF APPEAL DECISION:

21 August 2008

DATE OF SECOND APPEAL DECISION:

4 September 2008

SUBJECT MATTER OF DECISION:

Remittal of matter to Commission from Court of Appeal.

PRESIDENTIAL MEMBER:

President, Judge Keating

HEARING:

On the papers

REPRESENTATION:

Appellant:

In person

Respondent:

Sparke Helmore

ORDERS MADE ON APPEAL:

The matter is remitted to a different Arbitrator for determination in accordance with the reasons set out in the Court of Appeal’s decision dated 21 August 2008.

BACKGROUND TO THE APPEAL

On 15 March 2005 Ms Tan sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 16 February 2005. The Respondent to the appeal was National Australia Bank Ltd.

The National Australia Bank Ltd also appealed the Arbitrator’s decision of 16 February 2005, filing an appeal on 21 March 2005.

The two appeals were heard together by Deputy President Fleming.

The Deputy President determined the appeals on 8 June 2006 when the Arbitrator’s decision, except in so far as it related to costs, was revoked and an award entered in favour of the National Australia Bank Ltd (Tan v National Australia Bank Ltd [2006] NSWWCCPD 115 (‘Tan’) and National Australian Bank v Tan [2006] NSWWCCPD 116). The facts and background to the appeal are fully set out in Tan and will not be repeated here.

Ms Tan appealed to the Court of Appeal. The appeal was heard on 7 April 2008 and decided in part, in favour of Ms Tan, in a decision dated 21 August 2008 (Tan v National Australia Bank Ltd [2008] NSWCA 198).

The Court of Appeal made the following orders:

“1. Allow the appeal with respect to the decision of the Deputy President rejecting Ms Tan’s entitlement to invoke s 260(5) in relation to a claim for compensation in respect of an injury suffered on 5 April 2004.
2.Remit that matter to the Commission to be determined according to law.”

DECISION

The Court of Appeal upheld Ms Tan’s appeal in so far as it related to the Deputy President’s decision in relation to the claim that Ms Tan suffered a further injury on 5 April 2004 and it is this matter that is remitted to the Commission for determination according to law.

Basten JA noted at [47] – [49]:

“47.There are three further points which may be made in this respect. First, the point on which Ms Tan has succeeded is limited to the claim that she suffered a further injury on 5 April 2004. The further proceedings before the Commission should be limited to that matter.
48.Secondly, it appears that at all times it has been open to Ms Tan to file a further claim in relation to that matter which would have avoided the need for the appeal and the present remittal. At least in legal terms, it is difficult to perceive that she would be better off on a remittal than in having the Commission consider a new claim. In respect of her challenges to the findings of the Deputy President with respect to her own appeal, she has failed. In those circumstances there should be no order as to the costs of the parties in this Court.

49. Thirdly, the matter remitted to the Commission is the appeal brought by the Bank which has not been finally determined. The Bank has taken and failed on a technical point as to the existence of a relevant claim. The substance of the Bank’s complaint, however, was one of procedural unfairness. There does not appear to be any legal obstacle in the way of the Bank, now informed of the claim which is sought to be made, taking such steps as may be thought appropriate to investigate and assess the claim prior to any further hearing in the Commission. The matter should be determined on the merits as expeditiously as possible.” (emphasis added)

In order to implement the Court of Appeal’s decision and orders, it is appropriate that I remit the matter for determination in respect of the claim for injury on 5 April 2004, to the first available Arbitrator, but not the Arbitrator at first instance. The Arbitrator is to set down an appropriate timetable to enable to parties time to prepare the matter as expeditiously as possible and should, as appropriate, provide the parties with an opportunity to explore resolution of the matter prior to determination. (see Young CJ in Eq at [104]).

Therefore, the appropriate determination by the Commission is:

“The matter is remitted to a different Arbitrator for determination in accordance with the reasons set out in the Court of Appeal’s decision dated 21 August 2008.”

Judge Keating
President

4 September 2008

I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE

In the matter of Tan v National Australia Bank Ltd (No 2), the parties were engaged in a dispute that was remitted back to the Australian Securities and Investments Commission (ASIC) for further determination. The case arose from issues concerning the relationship between the parties and the obligations and duties owed by the bank to the individual. The Court of Appeal was tasked with determining whether the original decision-maker, ASIC, had erred in their determination and whether the matter should be remitted back to them or a different decision-maker for re-determination. The dispute centred on the interpretation of the relevant legislation and the applicable legal principles that should have been applied in the circumstances.

The primary legal issue before the Court of Appeal was whether ASIC had correctly applied the relevant statutory provisions and legal principles in making their determination. The court was required to consider whether the original decision-maker had erred in their interpretation of the law and, if so, whether the matter should be remitted back to ASIC or a different decision-maker for re-determination. The court had to consider the appropriate scope of judicial review and the extent to which it should interfere with the decision-making process of the original decision-maker.

In determining the matter, the Court of Appeal held that ASIC had erred in their interpretation of the relevant legislation and legal principles. The court found that the original decision-maker had failed to properly consider the relevant legal principles and had applied an incorrect test in making their determination. The Court of Appeal concluded that the matter should be remitted back to a different decision-maker for re-determination in accordance with the reasons set out in their decision dated 21 August 2008. The court found that it was appropriate to remit the matter to a different decision-maker to ensure that the correct legal principles were applied and that the matter was determined in accordance with the law.

The final orders of the Court of Appeal were that the matter be remitted to a different Arbitrator for determination in accordance with the reasons set out in the Court of Appeal’s decision dated 21 August 2008. The court held that it was appropriate to remit the matter to a different decision-maker to ensure that the correct legal principles were applied and that the matter was determined in accordance with the law. The Court of Appeal found that the original decision-maker had erred in their interpretation of the relevant legislation and legal principles and that the matter required re-determination by a different decision-maker.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established