Toll Pty Limited v Craig Morrissey [2008] NSWCA 197

New South Wales Court of Appeal

CITATION: Toll Pty Limited v Craig Morrissey [2008] NSWCA 197 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 4 August 2008 JUDGMENT OF: Beazley JA at 1; Handley AJA at 15; McDougall J at 16

EX TEMPORE JUDGMENT DATE: 4 August 2008

1. The appeal is allowed; 2. The determination of the Acting Deputy President of 7 November 2007 is set aside; 3. The decision of the arbitrator dated 27 June 2007 is set aside; DECISION: 4. The dispute between the appellant and the respondent in the Workers Compensation Commission of New South Wales is to be returned to the Commission for determination; 5. Each party is to pay its and his own costs of the appeal; 6. The respondent is to have a Certificate under the Suitors' Fund Act 1951 if so entitled; and 7. The Court further orders that in respect of the hearing before the Deputy President each party is to pay his and its own costs.

CATCHWORDS: WORKERS COMPENSATION – appeal from decision of arbitrator – appeal must be allowed unless error of arbitrator could not possibly have affected the result - EVIDENCE – workers compensation - subpoena for production – employer entitled to assess financial records of claimant

LEGISLATION CITED: Workers Compensation Act 1987, s 40

House v King [1936] HCA 40; (1936) 55 CLR 499 CASES CITED: Mitchell v Central West Health Service (1997) 14 NSWCCR 526 Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141