Toll Pty Limited v Craig Morrissey [2008] NSWCA 197

Toll Pty Limited v Craig Morrissey [2008] NSWCA 197

The appeal was allowed because the Acting Deputy President correctly found that the arbitrator erred in refusing production of the financial records, but then applied the wrong test by effectively reversing the onus: the appeal from the arbitrator should have been allowed unless the arbitrator's error could not possibly have affected the result. Given the respondent's s 40 claim for weekly compensation, the appellant was entitled to primary source material showing the respondent's earnings from the company, and the wages schedule annexed to the respondent's statement was not the primary wages record.

Jurisdiction
Australia
Judgment Date
04 August 2008
Procedural Posture
Workers Compensation Appeal / Appeal to the New South Wales Court of Appeal From a Determination of the Acting Deputy President of the Workers Compensation Commission of New South Wales
Outcome
Appeal allowed; determinations below set aside; dispute returned to the Workers Compensation Commission of New South Wales for determination.
Legal Topics
['weekly Compensation for Partial Incapacity' 'direction for Production' 'subpoena or Notice to Produce Financial Records' 'error of Law on Appeal' 'onus Where Procedural Error May Have Affected Result']
['workers Compensation' 'evidence' 'civil Procedure'] ['weekly Compensation for Partial Incapacity' 'direction for Production' 'subpoena or Notice to Produce Financial Records' 'error of Law on Appeal' 'onus Where Procedural Error May Have Affected Result']

Case Brief

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Procedural Posture

Workers Compensation Appeal / Appeal to the New South Wales Court of Appeal From a Determination of the Acting Deputy President of the Workers Compensation Commission of New South Wales

Legal Issues

  1. 1 ['Whether the arbitrator erred in refusing to issue a Direction for Production requiring production of financial records by Mr Morrissey and C & J Morrissey Transport Pty Limited.' "Whether the Acting Deputy President applied the wrong test by asking whether he was satisfied that the arbitrator's error would have affected the outcome, rather than allowing the appeal unless the error could not possibly have affected the result." "Whether the appellant was entitled to access primary source material evidencing the respondent's earnings from the company for the purposes of the respondent's claim for weekly compensation under s 40 of the Workers Compensation Act 1987."]

Ratio Decidendi

The appeal was allowed because the Acting Deputy President correctly found that the arbitrator erred in refusing production of the financial records, but then applied the wrong test by effectively reversing the onus: the appeal from the arbitrator should have been allowed unless the arbitrator's error could not possibly have affected the result. Given the respondent's s 40 claim for weekly compensation, the appellant was entitled to primary source material showing the respondent's earnings from the company, and the wages schedule annexed to the respondent's statement was not the primary wages record.

Court Disposition

Appeal allowed; determinations below set aside; dispute returned to the Workers Compensation Commission of New South Wales for determination.

Orders

  • ['The appeal is allowed.' 'The determination of the Acting Deputy President of 7 November 2007 is set aside.' 'The decision of the arbitrator dated 27 June 2007 is set aside.' 'The dispute between the appellant and the respondent in the Workers Compensation Commission of New South Wales is to be returned to the...