Toll Pty Ltd v Morrissey (No 2)

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,…