CITATION: Toll Pty Limited v Craig Morrissey [2008] NSWCA 197 This decision has been amended. Please see the end of the judgment for a list of the amendments.
LOWER COURT JURISDICTION: Workers Compensation Commission of New South Wales
LOWER COURT FILE NUMBER(S): WCC2123-2007
LOWER COURT JUDICIAL OFFICER: Arbitrator Bell; Acting Deputy President Handley
LOWER COURT DATE OF DECISION: 27 June 2007; 7 November 2007
COUNSEL: D Nock SC; P Perry (Appellant) L King SC; P Regattieri (Respondent)
SOLICITORS: Leigh Virtue & Associates (Appellant) M J Duffy & Son (Respondent)
CATCHWORDS: WORKERS COMPENSATION – appeal from decision of arbitrator – appeal must be allowed unless error of arbitrator could not possibly have affected the result EVIDENCE – workers compensation - subpoena for production – employer entitled to assess financial records of claimant
DECISION: 1. The appeal is allowed; 2. The determination of the Acting Deputy President of 7 November 2007 is set aside; 3. The decision of the arbitrator dated 27 June 2007 is set aside; 4. The dispute between the appellant and the respondent in the Workers Compensation Commission of New South Wales is to be returned to the Commission for determination; 5. Each party is to pay its and his own costs of the appeal; 6. The respondent is to have a Certificate under the Suitors’ Fund Act 1951 if so entitled; and 7. The Court further orders that in respect of the hearing before the Deputy President each party is to pay his and its own costs.
JUDGMENT:
- 4 -
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
CA 40841/07
BEAZLEY JA HANDLEY AJA McDOUGALL J
Ex tempore Monday, 4 August 2008
Toll Pty Limited v Craig Morrissey
Judgment
BEAZLEY JA: The respondent was injured in the course of his employment with the appellant. Thereafter, he was partially incapacitated. He thus had an entitlement to weekly compensation under s 40 of the Workers Compensation Act 1987, if his ability to earn in some alternative employment was less than what he would have been earning but for the injury: see Mitchell v Central West Health Service (1997) 14 NSWCCR 526.
The respondent ceased his employment with the appellant and, for a period of time, worked as a truck driver for a company of which he and his wife were the principals. The company was incorporated in about October 2006 and it appears that the respondent worked as a truck driver for the company from then until about April 2007.
The appellant…
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 Toll Pty Ltd v Morrissey
Sign in free to access the full text
Details
AGLC
Toll Pty Ltd v Morrissey [2008] NSWCA 197
Case
[2008] NSWCA 197
Decision Date
CaseChat Overview and Summary
This matter concerned an appeal to the Court of Appeal of New South Wales by Toll Pty Ltd against a decision of the Acting Deputy President of the Workers Compensation Commission. The dispute involved a claim by the respondent, Mr. Morrissey, for workers' compensation benefits. A key element of the proceedings before the arbitrator had been the respondent's refusal to produce certain financial records, which the appellant sought to have produced.
The primary legal issue before the Court of Appeal was whether the arbitrator had erred in refusing to compel the production of the respondent's financial records. This involved considering the scope of an employer's entitlement to assess such records in the context of a workers' compensation claim and the principles governing the admission of evidence in such proceedings. The Court also had to determine whether any error made by the arbitrator could have possibly affected the outcome of the case.
The Court of Appeal found that the arbitrator had made an error in refusing to order the production of the respondent's financial records. The Court reasoned that in workers' compensation matters, an employer is generally entitled to assess the financial records of a claimant to determine the extent of their entitlement, particularly where the claim might involve issues of earning capacity or other financial considerations. The Court held that this error was not one that could not possibly have affected the result, as the withheld evidence might have been material to the determination of the claim. Consequently, the appeal was allowed, the previous determinations were set aside, and the matter was remitted to the Workers Compensation Commission for redetermination.
Orders
Orders of the court
1. The appeal is allowed; 2. The determination of the Acting Deputy President of 7 November 2007 is set aside; 3. The decision of the arbitrator dated 27 June 2007 is set aside; 4. The dispute between the appellant and the respondent in the Workers Compensation Commission of New South Wales is to be returned to the Commission for determination; 5. Each party is to pay its and his own costs of the appeal; 6. The respondent is to have a Certificate under the Suitors' Fund Act 1951 if so entitled; and 7. The Court further orders that in respect of the hearing before the Deputy President each party is to pay his and its own costs.