Hee v State Transit Authority of New South Wales (No 2)

[2019] NSWWCCPD 34

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Hee v State Transit Authority of New South Wales (No 2) [2019] NSWWCCPD 34
APPELLANT:	Michael Hee
RESPONDENT:	State Transit Authority of New South Wales
INSURER:	Self-insured
FILE NUMBER:	A1-2051/17
ARBITRATOR:	Mr G Capel
DATE OF ARBITRATOR’S DECISION:	27 October 2017
DATE OF APPEAL DECISION:	26 February 2018
DATE OF COURT OF APPEAL DECISION:	17 July 2019
DATE OF DECISION ON REMITTER:	18 July 2019
SUBJECT MATTER OF DECISION:	Orders on remitter from the Court of Appeal
PRESIDENTIAL MEMBER:	President Judge Phillips
HEARING:	On the papers
REPRESENTATION:	Appellant:	Law Partners Personal Injury Lawyers
Respondent:	Moray & Agnew Lawyers
ORDERS MADE ON APPEAL:	1.    The Certificate of Determination dated 27 October 2017 is revoked. 2.    The matter is remitted for redetermination by a different Arbitrator, in accordance with the decision in Hee v State Transit Authority of New South Wales [2019] NSWCA 175 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 Hee v State Transit Authority of New South Wales.[1]

   [1] [2019] NSWCA 175 (Hee).

BACKGROUND

1. This claim is brought by Michael Hee pursuant to s 38A of the Workers Compensation Act 1987 against his employer, the State Transit Authority of New South Wales.

2. The proceedings were determined initially by a Senior Arbitrator on 27 October 2017,[2] with an award being entered in favour of the employer. An appeal to a Presidential member was determined on 26 February 2018[3] in a decision which confirmed that of the Senior Arbitrator.

   [2] Hee v State Transit Authority of NSW [2017] NSWWCC 252.

   [3] Hee v State Transit Authority of NSW [2018] NSWWCCPD 6.

3. Mr Hee 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 July 2019. Justice White said:

   “Because the Arbitrator did not decide whether Mr Hee was able to return to his pre-injury employment (as that expression is explained above), and because the resolution of Mr Hee’s claim to benefits under s 38A depends upon whether there had been a ‘determination’ under s 37 which required a decision on that question, the matter should be remitted to the Commission to make the necessary factual finding. Section 353(2) of the WIM Act provides that on the hearing of an appeal from a decision of a Presidential member, this Court may remit the matter constituted by a Presidential member for determination by the Commission in accordance with the decision of the Court. It will be for the Presidential member to decide whether the proceeding should be remitted for rehearing to an arbitrator to make the necessary finding of fact or whether the finding should be made by the Presidential member. In either case the parties will be entitled to be heard further as to the finding that should be made and the procedure to be followed for the making of that finding.”[4]

   [4] Hee, [115].

2. Acting Justice of Appeal Simpson agreed with the judgment of White JA. Meagher JA dismissed the appeal.

3. The orders of the Court of Appeal were:

   1.    Appeal allowed.

   2.    Remit the proceedings to the Workers Compensation Commission for rehearing or redetermination of the appellant’s claim in accordance with the reasons of the majority of the Court.

   3.    Respondent to pay the appellant’s costs of the appeal.

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 26 February 2018 which has been set aside.

DECISION

1. The Certificate of Determination dated 27 October 2017 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.

Judge Phillips

PRESIDENT

18 July 2019