Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCA 264 Hearing dates: 15/04/2014 Decision date: 14 August 2014 Before: Meagher JA at [1]; Ward JA at [31]; Emmett JA at [32] Decision: 1 Grant leave to appeal. 2 Direct that the draft notice of appeal filed on 9 October 2013, with the deletion from Order 5 sought in the draft notice of appeal of the words "to constitute an Appeal Panel pursuant to s 328(1) of the WIMWC Act to determine the matter according to law", stand as the notice of appeal and be taken to have been filed on 9 October 2013. 3 The appeal be dismissed. 4 The appellant pay the costs of the appeal of the first respondent. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: WORKERS COMPENSATION - entitlement to compensation - whether the Appeal Panel of the Workers Compensation Commission wrongly determined liability and causation in the place of an arbitrator - whether the matter was capable of referral to an approved medical specialist under s 321 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) - whether the arbitrator characterised the injury as a "frank injury" or as an exacerbation or aggravation of a pre-existing condition - whether the Appeal Panel erred in failing to address s 323 of the Act Legislation Cited: Supreme Court Act 1970 (NSW), s 69(4) Workers Compensation Act 1987 (NSW), ss 4, 9, 9A, 16, 65, 65A, 66, 67 Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 105, 288, 289, 293, 294, 319, 320, 321, 323, 324, 325, 326, 327, 328, 329, 366 Supreme Court Act 1970 (NSW), s 69 Cases Cited: Australian Conveyor Engineering Pty Ltd v Mecha Engineering Pty Ltd (1998) 45 NSWLR 606 AVS Group of Companies Pty Ltd v Commissioner of Police [2010] NSWCA 81; 78 NSWLR 302 Beck v Weinstock [2012] NSWCA 289 Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2013] NSWSC 1290 Colliar v Bulley [2000] NSWCA 1 Elcheikh v Diamond Formwork (NSW) Pty Ltd (in liq) [2013] NSWSC 365 Haroun v Rail Corporation New South Wales [2008] NSWCA 192 Khaya v Container Terminals Australia Ltd [2005] NSWCA 433 Kirkpatrick v Kotis [2004] NSWSC 1265; 62 NSWLR 567 Rail Services Australia v Dimovski [2004] NSWCA 267 Rogers v Wentworth (NSW Court of Appeal, 18 April 1988, unreported) Zanardo v Tolevski [2013] NSWCA 449 Category: Principal judgment Parties: Jean Christian Bindah (Applicant) Carter Holt Harvey Woodproducts Australia Pty Ltd (First Respondent) Appeal Panel of the Workers Compensation Commission of New South Wales (Second Respondent) Registrar of the Workers Compensation Commission of New South Wales (Third Respondent) Representation: Counsel: M Allars SC (Applicant) JW Dodd (First Respondent) Solicitors: Turner Freeman (Applicant) Spark Helmore (First Respondent) Crown Solicitor's Office (NSW) (Second and Third Respondents, submitting appearances) File Number(s): 2013/303570 Publication restriction: Nil Decision under appeal Citation: Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2013] NSWSC 1290 Date of Decision: 2013-09-11 00:00:00 Before: Harrison AsJ File Number(s): 2012/147605