Tudor Capital Australia Pty Ltd v Christensen (No 3)

[2017] NSWWCCPD 45

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Tudor Capital Australia Pty Ltd v Christensen (No 3) [2017] NSWWCCPD 45
APPELLANT:	Tudor Capital Australia Pty Ltd
RESPONDENT:	Penelope Christensen
INSURER:	Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:	A1-5286/13
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:	8 September 2015
DATE OF APPEAL DECISION: DATE OF COURT OF APPEAL DECISION: DATE OF DECISION ON REMITTER:	25 February 2016 17 October 2017 25 October 2017
SUBJECT MATTER OF DECISION:	Orders on remitter from the Court of Appeal
PRESIDENTIAL MEMBER:	Deputy President Michael Snell
HEARING:	On the papers
REPRESENTATION:	Appellant:	HWL Ebsworth Lawyers
Respondent:	Edwards Michael Powell Lawyers
ORDERS MADE ON APPEAL:	1.     The Certificate of Determination dated 8 September 2015 is revoked. 2.     The matter is remitted for redetermination by a different Arbitrator, in accordance with the decision in Tudor Capital Australia Pty Limited v Christensen [2017] NSWCA 260 which identified the errors into which the original Arbitrator had fallen.

INTRODUCTION

1. This matter comes before the Commission pursuant to an order for remitter made by the Court of Appeal in Tudor Capital Australia Pty Limited v Christensen[1].

   [1] [2017] NSWCA 260 (Court of Appeal decision).

BACKGROUND

1. The claim is brought by Penelope Christensen (Mrs Christensen) on behalf of herself and her children, in respect of the death of her late husband, Grant Andrew Christensen (the late Mr Christensen) on 8 September 2008. The claim is against Tudor Capital Australia Pty Limited (Tudor Capital), which employed the late Mr Christensen as a portfolio manager at the time of his death. Mrs Christensen claims the entitlements prescribed in s 25 of the Workers Compensation Act1987.

2. The proceedings were determined initially by an Arbitrator, on 8 September 2015, with Mrs Christensen being successful. An appeal to a Presidential member was determined on 25 February 2016, in a decision which confirmed that of the Arbitrator. 

3. Tudor Capital appealed the decision of the Presidential member, to the Court of Appeal.

THE DECISION OF THE COURT OF APPEAL

1. The Court of Appeal decision is dated 17 October 2017. Justice McColl said that “the matter should be remitted to the Commission constituted by a Presidential member for determination in accordance with the Court’s decision”[2]. At the conclusion of her reasons, McColl JA said:

   “Although I accept that Professor Keogh and Dr Rainer’s evidence cast considerable doubt on the viral myocarditis theory, I do not think it is open to this Court to conclude that Mrs Christensen’s case should have been dismissed. Rather, in my view, having identified the errors to which I have referred, the Deputy President should have remitted the matter back to another Arbitrator for determination in accordance with a decision correctly identifying the errors into which the Arbitrator had fallen. It should have been remitted to another Arbitrator having regard to the views the Arbitrator had expressed about Professor Keogh.”[3]      

   [2] Court of Appeal decision at [4].

   [3] Court of Appeal decision at [421].

2. Justice Macfarlan agreed with the judgment of McColl JA, although adding some observations on the topic of procedural fairness.[4] Justice Payne agreed with the orders of McColl JA, but for reasons separately stated.[5] 

   [4] Court of Appeal decision at [425].

   [5] Court of Appeal decision at [429].

3. The orders of the Court of Appeal were:

   “1. Appeal allowed;

   2. Set aside the decision of the Workers Compensation Commission made on 25 February 2016;

   3. Remit the matter to the Commission for redetermination;

   4. Respondent to pay the appellant’s costs of the appeal and to have a certificate under the Suitors’ Fund Act 1951 (NSW) if so entitled.”

ORDERS ON REMITTER

1. It is necessary that appropriate orders be made in compliance with the judgment and orders of the Court of Appeal, in substitution for those in the Presidential decision dated 25 February 2016, which have been set aside.

DECISION

1. The Certificate of Determination dated 8 September 2015 is revoked.

2. The matter is remitted for redetermination by a different Arbitrator, in accordance with the Court of Appeal decision which identified the errors into which the original Arbitrator had fallen.

Michael Snell

Deputy President

25 October 2017