Toll Pty Ltd v Morrissey - [2007] NSWWCCPD 221

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
*STATUS: This decision has been the subject of a remitter from the Court of Appeal see: Toll Pty Limited v Craig Morrissey* [2008] NSWCA 197 and Toll Pty Ltd v Morrissey (No 2) [2008] NSWWCCPD 90**
CITATION:		Toll Pty Ltd v Morrissey [2007] NSWWCCPD 221
APPELLANT:		Toll Pty Ltd
RESPONDENT:		Craig Anthony Morrissey
INSURER:		Toll Pty Ltd
FILE NUMBER:		WCC2123-04
DATE OF ARBITRATOR’S DECISION:		27 June 2007
DATE OF APPEAL DECISION:		7 November 2007
SUBJECT MATTER OF DECISION:		Refusal of request for issue of Direction for Production.
PRESIDENTIAL MEMBER:		Acting Deputy President Robin Handley
HEARING:		On the papers
REPRESENTATION:		Appellant:	Leigh Virtue & Associates
Respondent:	MJ Duffy & Sons, Solicitors
ORDERS MADE ON APPEAL:		The decision of the Arbitrator dated 27 June 2007 is confirmed.
The Appellant, Toll Pty Ltd, is to pay the costs of the Respondent, Mr Morrissey, in this appeal.

BACKGROUND TO THE APPEAL

On 25 July 2007, Toll Pty Ltd (‘Toll’) sought leave in the Workers Compensation Commission (‘the Commission’) to bring an appeal against the decision of an arbitrator dated 27 June 2007. The Respondent to the appeal is Craig Morrissey. Toll is a workers compensation self-insurer.

Mr Morrissey was born on 10 January 1972 and is aged 35. He commenced employment as a truck driver at Toll’s Gilgandra depot in 2001. On 30 January 2003, he injured his back while changing a tyre on a semi-trailer when the wheel brace slipped and he fell to his knees. Mr Morrissey continuing working, but on experiencing increasing symptoms in his back, he consulted a general practitioner, Dr Karem Dabash, who referred him for a CT scan of his lumbar spine. This revealed a left posterior disc protrusion at L5/S1. Mr Morrissey was certified unfit for work from 17 February 2003 and, after treatment, he was certified as fit for suitable duties for four hours a day on five days a week from 15 April 2003. He returned to his pre-injury duties in December 2003 but was unable to cope because of his back injury. He was then given light work at the Gilgandra depot, but when this was no longer available, on 18 February 2005, he was sent home and, on 4 May 2005 his employment was terminated. Since then, Mr Morrissey has undertaken some truck driving on his own account.

On 25 March 2003, Mr Morrissey made a claim for workers compensation, and Toll paid his medical expenses and paid him weekly compensation. On 21 October 2005, Toll ceased payment of weekly compensation on the ground that Mr Morrissey had failed to provide sufficient information to enable it to make a proper assessment of his entitlement to compensation pursuant to section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’).

On 27 March 2007, the Commission registered Mr Morrissey’s ‘Application to Resolve a Dispute’ in respect of his claim for weekly compensation. On 2 May 2007, the Arbitrator…

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: [2007] NSWWCCPD 221
Decision Date: 7 November 2007

CaseChat Overview and Summary

The case before the court involved Toll Pty Ltd as the applicant and Morrissey as the respondent. The primary dispute was over the refusal of a request for the issue of a Direction for Production. This matter was heard in the Federal Court of Australia. The applicant, Toll Pty Ltd, sought an order for the production of certain documents from the respondent, Morrissey, which they believed were necessary for their legal proceedings. The respondent, however, refused to provide these documents, leading to the application for a Direction for Production.

The central legal issue that the court had to address was whether the refusal to provide the requested documents was justified under the circumstances. The court needed to determine if the requested documents were indeed necessary for the fair administration of justice and if the respondent had a valid reason to withhold them. The court also had to consider the balance between the right to a fair trial and the protection of sensitive information.

The court, after careful consideration of the arguments presented by both parties, found that the refusal of the request for the issue of a Direction for Production was justified. The court held that the documents in question were not necessary for the fair administration of justice, and the respondent had valid reasons for withholding them. The court emphasised the importance of protecting sensitive information and balanced it against the need for disclosure in legal proceedings. Consequently, the decision of the Arbitrator dated 27 June 2007 was confirmed.

Orders

Orders of the court

The decision of the Arbitrator dated 27 June 2007 is confirmed.

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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