Way v Newcastle City Council - [2004] NSWWCCPD 17

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Way v Newcastle City Council [2004] NSW WCC PD 17
APPELLANT:  Ken Way
RESPONDENT:  Newcastle City Council
FILE NUMBER:  WCC10518-03
DATE OF ARBITRATOR’S DECISION:          23 September 2003
DATE OF APPEAL DECISION:  29 March 2004
SUBJECT MATTER OF DECISION: Sections 15 and 16 of the Workers Compensation Act 1987 and 261 of the Workplace Injury Management and Workers Compensation Act 1998, ‘injury’ or ‘disease’, time for making of claim, power of Arbitrator to ‘strike out’ proceedings
PRESIDENTIAL MEMBER:  Dr Gabriel Fleming
HEARING:Determined on the Papers
REPRESENTATION:  Appellant: Whitelaw McDonald Solicitors
Respondent: Harris Wheeler Lawyers

ORDERS MADE ON APPEAL: Leave to Appeal is granted.
The decision of the Arbitrator is revoked.
The application is referred back to the Registrar for allocation to an Arbitrator to be determined in accordance with these reasons.

BACKGROUND

On 21 October 2003, Ken Way (‘Mr Way/the Appellant’) lodged an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission. The Respondent to the Appeal is Newcastle City Council (‘the Council/the Respondent’), which is a self-insurer for the purpose of worker’s compensation.

The Respondent filed a reply to the appeal on 20 November 2003.

The appeal relates to Mr Way’s claim for workers compensation payments from the Council, his former employer, for permanent impairment and associated pain and suffering. The Council has denied liability for the claim.

The Arbitrator held two teleconferences in this matter. At the first teleconference, on 20 August 2003, the Respondent submitted that the claim was out of time. The Arbitrator adjourned the proceedings to give the parties the opportunity to prepare submissions on this issue. These submissions were duly made.

At the second teleconference, on 23 September 2003, the Arbitrator ordered “the application be struck out as the application does not meet the exceptions of section 261(3)(6)” (sic). This refers to section 261 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), set out below. A Direction, including a short statement of reasons (‘the reasons’) was then issued.

The Appellant wants this order revoked, the proceedings revived, and a further teleconference held before an Arbitrator who will determine the substantive dispute.

The Respondent submits that the Arbitrator’s decision should not be interfered with.

This matter was referred to me for review on 12 February 2004.

THE ARBITRATOR’S DECISION

The Arbitrator’s reasons are briefly stated, and provide, relevantly, as follows:

“. . . A distinction must be drawn however between the date a claim is made and the last date of relevant employment. To a great extent the repealed sections of the 1987 Act mirror those in the 1998 Act. However the 1998 Act is strengthened by removal of the words ‘ if the claim is not made within three years but it is found that it is in the interests of justice that the claim not be barred’ no longer appear.
Section 261(4) of the 1998 Act refers to:
The failure to…

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: [2004] NSWWCCPD 17
Decision Date: 29 March 2004

CaseChat Overview and Summary

Ken Way, the appellant, appealed the decision of an arbitrator who dismissed his claim for workers compensation payments from his former employer, Newcastle City Council, the respondent. The appeal related to the appellant’s claim for workers compensation payments for permanent impairment and associated pain and suffering. The Council denied liability for the claim, arguing that the claim was out of time. The Arbitrator struck out the proceedings, finding that the claim did not meet the exceptions of section 261(3)(6) of the Workplace Injury Management and Workers Compensation Act 1998. The appellant wanted the order revoked, the proceedings revived, and a further teleconference held before an arbitrator who would determine the substantive dispute. The respondent submitted that the Arbitrator’s decision should not be interfered with. The appeal was allowed. The decision of the Arbitrator was revoked, and the application was referred back to the Registrar for allocation to an arbitrator to be determined in accordance with these reasons.

Orders