Nexon Asia Pacific Pty Ltd trading as Commander Australia Pty Ltd v Badawi (No.2)

[2009] NSWWCCPD 141

WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR FOLLOWING REMITTER FROM THE COURT OF APPEAL
STATUS: Determined on remitter: See Badawi v Nexon Asia Pacific Pty Limited trading as Commander Australia Pty Limited [2009] NSWCA 324
CITATION:		Nexon Asia Pacific Pty Ltd trading as Commander Australia Pty Ltd v Badawi (No.2) [2009] NSWWCCPD 141
APPELLANT:		Nexon Asia Pacific Pty Ltd trading as Commander Australia Pty Ltd
RESPONDENT:		Nevien Badawi
INSURER:		Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:		WCC9382-07
DATE OF ARBITRATOR’S DECISION:		26 February 2008
DATE OF FIRST APPEAL DECISION:		14 July 2008
DATE OF COURT OF APPEAL DECISION:		8 October 2009
DATE OF SECOND APPEAL DECISION:		30 October 2009
SUBJECT MATTER OF DECISION:		Matter on remitter from the Court of Appeal to the Workers Compensation Commission.
PRESIDENTIAL MEMBER:		President, Judge Greg Keating
HEARING:		On the papers
REPRESENTATION:		Appellant:	Sparke Helmore
Respondent:	Firths
ORDERS MADE ON APPEAL:		1.    The decision of the Arbitrator dated 26 February 2008 is confirmed. 2.    Nexon Asia Pacific Limited t/as Commander Australia Pty Limited is to pay Ms Badawi’s costs of the arbitral appeal proceedings.

BACKGROUND TO THE APPEAL

1. Ms Badawi suffered injury to her knee when she was on a business trip to Perisher Blue Resort. Her employer, Nexon Asia Pacific Pty Ltd trading as Commander Australia Ltd (‘Commander’), denied liability, on the basis that her injury did not occur during the course of her employment, or alternatively, her employment was not a substantial contributing factor to the injury under section 9A of the Workers Compensation Act 1987.

1. Ms Badawai was successful at first instance in the Workers Compensation Commission (‘the Commission’). The Arbitrator found that Ms Badawi suffered injury to her knee in the course of employment and that her employment was a substantial contributing factor to the injury.

1. A Certificate of Determination dated 26 February 2008 recorded the Arbitrator’s orders as follows:

“1.     The Respondent to pay the Applicant weekly benefits compensation pursuant to section 36 at the rate of $1538.46 per week from 27 July 2007 to 22 October 2007.

2.       The Respondent to pay the Applicant’s section 60 medical and treatment expenses.

3.       The Respondent to pay the Applicant’s costs as agreed or as assessed.”

1. Commander sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Commission against the Arbitrator’s decision. It challenged only the finding that, pursuant to section 9A, employment was a substantial contributing factor to the injury.

1. On 14 July 2008, I upheld the appeal, finding that Ms Badawi’s employment was not a substantial contributing factor to the injury.  I revoked the Arbitrator’s decision and made orders in favour of the Appellant. (Nexon Asia Pacific Pty Ltd trading as Commander Australia Pty Ltdv Badawi [2008] NSWWCCPD 72).

1. Ms Badawi appealed to the Court of Appeal.  The appeal was heard on 22 June 2009 and judgment was delivered on 8 October 2009 (Badawi v Nexon Asia Pacific Limited t/as Commander Australia Pty Limited [2009] NSWCA 324).

1. The Court of Appeal made the following orders:

“1.      The appeal is allowed;

2.Set aside the decision of the Workers Compensation Commission (the Commission) made on 14 July 2008;

3.Remit the matter to the Commission for determination in accordance with these reasons that the employment concerned was a substantial contributing factor to the injury;

4.The respondent to pay the appellant’s costs. The respondent is to have a certificate under the Suitors’ Fund Act 1951(NSW) if so entitled.”

1. Given the Court of Appeal’s orders, and that there are no other issues in dispute between the parties, the appropriate order is that the Arbitrator’s decision dated 26 February 2008 is upheld and confirmed and that is the order I make.

DECISION

1. In accordance with the reasons and orders of the Court of Appeal in Badawi v Nexon Asia Pacific Limited t/as Commander Australia Pty Limited [2009] NSWCA 324 the following orders are made:

1.The decision of the Arbitrator dated 26 February 2008 is confirmed.

2.       Nexon Asia Pacific Limited t/as Commander Australia Pty Limited is to pay Ms Badawi’s costs of the arbitral appeal proceedings.

His Hon. Judge Greg Keating

President

30 October 2009

I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF HIS HON. JUDGE GREG KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE