Toll Pty Ltd v Morrissey (No 2)

[2008] NSWWCCPD 90

WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR FOLLOWING REMITTER FROM THE COURT OF APPEAL
STATUS: Remitter: This decision is a decision on remitter from the Court of Appeal in: Toll Pty Ltd v Craig Morrissey [2008] NSWCA 197
CITATION:		Toll Pty Ltd v Morrissey (No 2) [2008] NSWWCCPD 90
APPELLANT:		Toll Pty Ltd
RESPONDENT:		Craig Morrissey
INSURER:		Toll Pty Ltd
FILE NUMBER:		WCC2123-07
DATE OF ARBITRATOR’S DECISION:		27 June 2007
DATE OF FIRST APPEAL DECISION:		7 November 2007
DATE OF COURT OF APPEAL DECISION:		4 August 2008
DATE OF SECOND APPEAL DECISION:		1 September 2008
SUBJECT MATTER OF DECISION:		Remittal of matter to Commission from Court of Appeal.
PRESIDENTIAL MEMBER:		President, Judge Greg Keating
HEARING:		On the papers
REPRESENTATION:		Appellant:	Leigh Virtue &Associates
Respondent:	MJ Duffy & Sons, Solicitors
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 4 August 2008. As per the order of the Court of Appeal, each party is to bear his or its own costs of the appeal to Acting Deputy President Handley.

BACKGROUND TO THE APPEAL

1. On 25 July 2007 Toll 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 27 June 2007.

1. The Respondent to the Appeal is Craig Morrissey (‘the Respondent Worker’).

1. Acting Deputy President Handley determined the appeal on 7 November 2007 when the Arbitrator’s decision was confirmed (Toll Pty Ltd v Morrissey [2007] NSWWCCPD 221). The facts and background to the appeal are fully set out in that decision and will not be repeated here.

1. The Appellant Employer appealed to the Court of Appeal.  The appeal was heard on 4 August 2008 and decided in the Appellant Employer’s favour in an ex tempore decision (Toll Pty Limited v Craig Morrissey [2008] NSWCA 197).

1. The Court of Appeal made the following orders:

“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 own costs of the appeal;

6.The respondent is to have a Certificate under the Suitor’ 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.”

1. Beazley JA, with Handley AJA and McDougall J agreeing held at [9]-[11]:

“9.     The appellant appealed and the matter was determined by Acting Deputy President Handley.  Deputy President Handley indentified the issue in the matter as being that the arbitrator made an error of law by refusing to issue a Direction for Production, requiring the production of financial records by Mr Morrissey and by the company, C& J Morrissey Transport Pty Limited.

10.  The Deputy President found correctly, that the arbitrator erred in refusing to give a Direction for Production of the documents.  The Deputy President then stated that notwithstanding the arbitrator’s error, he was not satisfied that the error would have affected the outcome of the matter.  That finding was, however, erroneous.  By stating the test in that way, the Deputy President, in effect, reversed the onus.  The correct test was that he should have allowed the appeal from the arbitrator, unless the error of the arbitrator could not possibly have affected the result: see Stead v State Government insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 147.

11.  Having regard to the respondent’s claim for weekly compensation under s40, the appellant was entitled to have access to the primary source material evidencing the respondent’s earnings from the company.  The schedule that was attached to the respondent’s statement of evidence was an extract and was not the primary wages records.”

DECISION

1. The Court of Appeal held that the arbitrator erred in refusing to issue a ‘Direction for Production’ on both Mr Morrissey and the company, C & J Morrissey Transport Pty Limited, of which Mr Morrissey and his wife are principals, for the production of financial records and bank records of the company, and that the Deputy President in turn erred in not allowing the appeal.

1. I note that the proceedings before the arbitrator were conducted on 30 May 2007.  In order to implement the Court of Appeal’s decision and orders, the Appellant Employer shall have the opportunity to seek the issuing of ‘Directions for Production’ for the financial and bank records as detailed above. Given the passage of time since the proceedings were filed the parties generally should also have the opportunity to seek leave to adduce any further evidence.  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 4 August 2008.”

COSTS

1. As per the order of the Court of Appeal, each party is to bear his or its own costs of the appeal to Acting Deputy President Handley.

Judge Greg Keating

President

2 September 2008

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

ASSOCIATE