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Telecommunications Infrastructure Pty Ltd v Keepa

Telecommunications Infrastructure Pty Ltd v Keepa

Case [2006] NSWWCCPD 266 10 October 2006

Extension of Time to Appeal

Admission of Late Evidence

Judicial Review

Procedural Fairness

Substantial Merits of the Case

Workers Compensation Law

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WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Telecommunications Infrastructure Pty Ltd v Keepa [2006] NSWWCCPD 266
APPELLANT:  Telecommunications Infrastructure Pty Ltd
RESPONDENT:  Jeremy Keepa
INSURER:CGU Workers Compensation (NSW) Ltd
FILE NUMBER:  WCC1027-06
DATE OF ARBITRATOR’S DECISION:          11 April 2006
DATE OF APPEAL DECISION:  10 October 2006
SUBJECT MATTER OF DECISION:                Extension of time to appeal; admission of late evidence
PRESIDENTIAL MEMBER:  Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION:  Appellant:      Sparke Helmore
Respondent:    Gerard Malouf & Partners

ORDERS MADE ON APPEAL: 1. Time to appeal is extended until 4 August 2006.

2. The Arbitrator’s decision dated 11 April 2006 is revoked and the following order made:
“The Respondent is granted leave to rely on the documents attached to the Application to Admit Late Documents dated 20 March 2006.”
3. The matter is remitted to a different Arbitrator for determination of all outstanding issues that are within the Arbitrator’s jurisdiction.
4. The Appellant Employer is to pay the Respondent Worker’s costs of the appeal.

BACKGROUND TO THE APPEAL
1.On 4 August 2006 Telecommunications Infrastructure Pty Ltd (‘the Appellant Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 11 April 2006.

2.The Respondent to the Appeal is Jeremy Keepa (‘the Respondent Worker/Mr Keepa’).
3.Mr Keepa was born on 5 May 1971. On 29 May 2003 he was working for the Appellant Employer as a rigger. On that day he was dismantling a tower when it collapsed causing him to fall approximately 20 metres to the ground. As a result of his fall he sustained extensive injuries, including but not limited to the following: a left eye socket blow out fracture, a left haemothorax, multiple rib fractures, a T1 fracture, a fracture of the left radius and ulna, a traumatic brain injury, extensive lacerations, and injury to his legs. He was conveyed to hospital where he was admitted into intensive care for several weeks. Ultimately, he made a partial recovery from his life threatening injuries and returned to work on light duties in September 2003. He continued those duties until he resigned on or about 27 July 2005.
4.Mr Keepa’s claim for compensation was lodged with CGU Workers Commission (NSW) Ltd (‘CGU’) and was accepted. His Application to Resolve a Dispute (‘the Application’) was registered with the Commission on 24 January 2006. In it he sought weekly compensation from September 2003 to date and continuing. He also claimed lump sum compensation in three amounts: $50,000.00 in respect of 29% whole person impairment as a result of his orthopaedic injuries, $6,250.00 in respect of whole person impairment resulting from his head injury, and $35,000.00 in respect of pain and suffering. The claim for weekly compensation is now, apparently, a claim for a closed period only though I do not know precise particulars of the claim.
5.The Application was served on CGU by letter dated 31 January 2006 addressed…

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.

Continue reading Telecommunications Infrastructure Pty Ltd v Keepa

Details

AGLC: Telecommunications Infrastructure Pty Ltd v Keepa [2006] NSWWCCPD 266
Case: [2006] NSWWCCPD 266
Decision Date: 10 October 2006

CaseChat Overview and Summary

In the matter of Telecommunications Infrastructure Pty Ltd v Keepa, the Workers Compensation Commission was required to decide whether the Arbitrator erred in refusing the Appellant Employer leave to rely on its Reply and the documents attached to it. The Appellant Employer also sought an extension of time to appeal the Arbitrator’s decision. The appeal was lodged outside the 28-day period allowed under section 352 of the Workplace Injury Management and Workers Compensation Act 1998. However, the Acting Deputy President extended the time to appeal until 4 August 2006, finding that strict compliance with the time limits would result in a demonstrable and substantial injustice to the Appellant Employer. The Acting Deputy President found that the Arbitrator had failed to properly exercise his discretion in considering the application to admit late documents, as he did not consider the most important factor of fairness and justice between the parties. The Arbitrator's decision dated 11 April 2006 was revoked, and the Respondent was granted leave to rely on the documents attached to the Application to Admit Late Documents dated 20 March 2006. The matter was remitted to a different Arbitrator for determination of all outstanding issues within the Arbitrator’s jurisdiction. The Appellant Employer was ordered to pay the Respondent Worker’s costs of the appeal.

Orders