Woolstar Pty Limited v Draper - [2024] NSWPICPD 72

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY A MEMBER
CITATION:	Woolstar Pty Limited v Draper [2024] NSWPICPD 72
APPELLANT:	Woolstar Pty Limited
RESPONDENT:	Nicole Draper
INSURER:	Employers Mutual NSW Limited
FILE NUMBER:	A1-W2316/24
PRESIDENTIAL MEMBER:	Acting Deputy President Geoffrey Parker SC
DATE OF APPEAL DECISION:	6 November 2024
ORDERS MADE ON APPEAL:	1. Leave to appeal is granted. 2. The Member’s determination of 13 June 2024 is revoked. 3. The matter is remitted for allocation to an alternative member for determination. 4. The documents the subject of the Application to Admit Late Documents dated 7 June 2024 not previously received should be available to the Commission for determination of the proceedings notwithstanding non-compliance with rule 67 of the Personal Injury Commission Rules 2021. Whether any particular document should be admitted is a matter for determination of the Member hearing the proceedings having regard to s 43 of the Personal Injury Commission Act 2020.
CATCHWORDS:	WORKERS COMPENSATION – Section 352(3A) of the Workplace Injury Management and Workers Compensation Act1998, clause 28 of Procedural Direction PIC 3 considered and applied, adequacy of reasons, consideration of the interests of justice for the admission of late documents required
HEARING:	On the papers
REPRESENTATION:	Appellant:
Mr T Grimes, counsel
BBW Lawyers
Respondent:
Ms E Grotte, counsel
John Peisley & Associates
DECISION UNDER APPEAL
MEMBER:	Mr M Wright
DATE OF MEMBER’S DECISION:	13 June 2024

INTRODUCTION

This is an appeal from a decision by a Member of the Personal Injury Commission (Commission) on 13June 2024 refusing leave to rely upon certain documents the subject of an Application to Admit Late Documents (AALD).
By an AALD signed 7 June 2024, the appellant sought leave to rely upon 278 pages of documents not previously lodged with the Commission.
The respondent did not object to the Commission receiving certain of the documents.
The respondent objected to three classes of documents, namely:
(a)    text message thread between a fellow employee and the respondent (pages 28–61);
(b)    a schedule of photographs of the respondent posted on Instagram by Mr Jorge Colvin from 9 January 2024 (pages 72–81), and
(c)    surveillance reports by AB Investigators dated 9 May 2024 and 3 June 2024 (pages 213–278).
The Member granted leave to rely upon the remaining documentation, which was not objected to and comprised:
(a)    meeting notes;
(b)    interviews with witnesses;
(c)    medical reports and clinical notes, and
(d)    bank statements.
For the reasons that follow, the appeal is allowed and the matter remitted for the allocation of a further date for hearing before an alternative member of the Commission.

BACKGROUND FACTS

The Member delivered an ex tempore judgment dealing with the issue before him. In order to understand his reasons, it is necessary to outline some background facts not apparent from the transcript of the Member’s reasons.
The background information is sourced predominantly from the respondent’s statement dated 4 January 2023. For the purpose of determining the appeal it is unnecessary for me to make findings…

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.

Continue reading Woolstar Pty Limited v Draper

Details

AGLC: Woolstar Pty Limited v Draper [2024] NSWPICPD 72
Case: [2024] NSWPICPD 72
Decision Date: 6 November 2024

CaseChat Overview and Summary

Woolstar Pty Limited brought a case against Draper, challenging the decision of the Workers Compensation Regulator to admit late documents in proceedings concerning workers' compensation. The dispute arose when Draper, a worker, claimed compensation for an injury sustained during employment, and Woolstar sought to exclude certain documents that were submitted beyond the prescribed deadlines. The case was heard by the Industrial Relations Commission of New South Wales.

The primary legal issue was whether the Workers Compensation Regulator was justified in admitting the late documents under section 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998. The court also needed to determine whether the Regulator had considered clause 28 of Procedural Direction PIC 3 and whether the interests of justice were properly weighed in deciding to admit the documents. Woolstar argued that the Regulator had not provided adequate reasons for admitting the late submissions, thereby breaching procedural fairness.

The court found that the Workers Compensation Regulator had the discretion to admit late documents under section 352(3A) if it was in the interests of justice to do so. The court held that the Regulator had adequately considered clause 28 of Procedural Direction PIC 3 and had properly balanced the interests of justice. The Regulator's decision to admit the documents was justified as it was necessary to resolve the substantive issues of the case fairly. The court concluded that Woolstar's argument regarding procedural fairness was not substantiated as the Regulator had provided sufficient reasons for their decision.

The court dismissed Woolstar's appeal, confirming the decision of the Workers Compensation Regulator to admit the late documents. The court emphasised that the Regulator had appropriately exercised their discretion in considering the interests of justice and had adhered to the procedural requirements set out in the legislation and procedural directions.

Orders