Welch v Paul Mitchell - [2007] NSWWCCPD 66

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Welch v Paul Mitchell [2007] NSWWCCPD 66

APPELLANT: Wayne Welch

RESPONDENT: Paul Mitchell

INSURER: QBE Workers Compensation (NSW) Limited

FILE NUMBER:  WCC9000-06
DATE OF ARBITRATOR’S DECISION:          22 September 2006
DATE OF APPEAL DECISION:  27 February 2007
SUBJECT MATTER OF DECISION: Adequacy of evidence to support a finding of “worker” under section 4 of the Workplace Injury Management and Workers Compensation Act 1998; the role of an Arbitrator; application of the principles in Jones v Dunkel (1959) 101 CLR 298.
PRESIDENTIAL MEMBER:  Acting Deputy President Deborah Moore
HEARING:On the papers
REPRESENTATION:  Appellant:      Kingston Swift, Solicitors
Respondent: Steven T Parrott Solicitor

ORDERS MADE ON APPEAL: 1. The decision of the Arbitrator dated 22 September 2006 is confirmed.

2. No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

Wayne Welch (‘the Appellant’) claimed that he was employed by Paul Mitchell (‘the Respondent’) on a casual basis as a cook/deckhand on various boats owned by the Respondent.

The Appellant claimed that on 17 December 2004, he was working on the Respondent’s boat, the Black Pearl. As the boat was coming back into port, the Appellant attempted to place the spring rope over the bollard and in doing so, caught his right ring finger between the rope and the bollard, suffering injury to that finger.

At the time of this incident, the Appellant was also employed on a part time basis by CBK Pty Limited trading as the Sea Breeze Hotel as a chef.

On 15 June 2006 the Appellant filed an ‘Application to Resolve a Dispute’ in the Commission seeking weekly benefits compensation for the period 18 December 2004 to 27 January 2005, and medical, hospital or related expenses pursuant to the provisions of the Workers Compensation Act 1987 (‘the 1987 Act’).

On 4 September 2006 the Respondent filed a ‘Reply’. The issues in dispute identified by the Respondent were as follows:

·“No evidence of employer/employee relationship.
·Applicant was on vessel under contract of carriage for recreational purposes.
·Applicant paid for carriage along with other passengers as per contract.
·Applicant has never been employed either on wages or contract by Respondent.”

The parties attended a conciliation/arbitration hearing on 8 September 2006. Both the Appellant and Respondent gave oral evidence at that hearing.

On 22 September 2006 a ‘Certificate of Determination’ with an accompanying ‘Statement of Reasons’ was issued. The decision of the Arbitrator was as follows:

“1. Award for the Respondent.

2. No order as to costs.”

On 10 October 2006 the Appellant filed an ‘Application to Appeal Against Decision of an Arbitrator’. Supplementary submissions were made by the Appellant on 23 October 2006, 22 November 2006 and 12 January 2007.

The focus of the Appellant’s submissions on appeal is paragraph 28 of the Arbitrator’s ‘Statement of Reasons’ wherein he stated as follows:

“This left it to the Arbitrator to raise the issue of the receipt allegedly issued by the Respondent 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: [2007] NSWWCCPD 66
Decision Date: 27 February 2007

CaseChat Overview and Summary

This appeal concerns a decision of an arbitrator of the Workers Compensation Commission of New South Wales. The Appellant, Wayne Welch, sought compensation under the Workers Compensation Act 1987 for an injury he sustained while working on a boat owned by the Respondent, Paul Mitchell. The Arbitrator dismissed the claim on the basis that the Appellant was not an employee of the Respondent. The Appellant appealed the decision to the Acting Deputy President of the Commission. The Acting Deputy President dismissed the appeal, confirming the Arbitrator’s decision.

The Appellant’s case was that he had been employed by the Respondent on a casual basis as a cook/deckhand on various boats owned by the Respondent. The Appellant claimed that on 17 December 2004, he was working on the Respondent’s boat, the Black Pearl. As the boat was coming back into port, the Appellant attempted to place the spring rope over the bollard and in doing so, caught his right ring finger between the rope and the bollard, suffering injury to that finger. The parties were unable to agree on whether the Appellant had been employed by the Respondent. The Arbitrator found that the evidence was equivocal and concluded that the Appellant had not established that there was an employer/employee relationship between him and the Respondent.

The Appellant’s submissions on appeal were twofold. First, the Appellant submitted that the Arbitrator was incorrect in stating that there was no cross examination on the issue of the receipt. The Arbitrator had raised the issue of the receipt in his ‘Statement of Reasons’, and both parties had been invited to cross examine the Respondent on this issue. The Appellant had cross examined the Respondent on the issue of the receipt. Secondly, the Appellant submitted that the Arbitrator failed to draw an adverse inference pursuant to the principles enunciated in Jones v Dunkel (1959) 101 CLR 298 with respect to the Respondent’s failure to call a witness being the captain of the boat.

The Acting Deputy President found that the evidence before the Arbitrator was equivocal. The evidence was insufficient to establish that the parties intended to enter into a legal relationship. Both parties were adamant that their respective evidence supported their respective assertions. The principal difficulty was the extent of the evidence, rather than the substance of it. The Acting Deputy President found that the Arbitrator’s decision was not affected by any legal, factual or discretionary error, and accordingly, dismissed the appeal.

The decision of the Arbitrator dated 22 September 2006 is confirmed. No order as to costs of the appeal is made.

Orders