Ballina Shire Council v Knapp [2019] NSWCA 146

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Ballina Shire Council v Knapp [2019] NSWCA 146 Hearing dates: 7 June 2019 Date of orders: 07 June 2019 Decision date: 20 June 2019 Before: Basten JA at [1]; Macfarlan JA at [6]; Payne JA at [7] Decision: 1. Allow the appeal;

2. Set aside the orders of Deputy President Wood made on 27 August 2018;

3. In lieu thereof,

(i) allow the appeal from the determination of the Arbitrator; (ii) set aside the Certificate of Determination made on 11 April 2018; and (iii) in place thereof make an award in favour of the respondent to the application to the Commission;

4. Dismiss the respondent's cross-appeal of 30 January 2019. Catchwords: WORKERS COMPENSATION – appeal against decision of Workers Compensation Commission –validity of Deputy President of WCC's re-determination of the Arbitrator's decision – s 352(5) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) and Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344; 5 DDCR 1 considered

WORKERS COMPENSATION – appeal against decision of Workers Compensation Commission – only question raised before the Deputy President of WCC was whether the respondent was entitled to compensation arising from a journey claim within the meaning of s 10 of the Workers Compensation Act – ground conceded by the appellant

WORKERS COMPENSATION – cross-appeal – whether Deputy President of WCC erred in point of law – whether evidence the respondent was speeding – whether there was evidence the respondent was holding his mobile telephone - "no evidence" ground does not apply - Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282 discussed Legislation Cited: Workers Compensation Act 1987 (NSW), ss 4, 10 Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 352, 353 Cases Cited: Amaba v Booth [2010] NSWCA 344 Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344; 5 DDCR 1 Comcare v PVYW (2013) 250 CLR 246; [2013] HCA 41 Davis v Mobil Oil Australia Ltd (1988) 12 NSWLR 10; 4 NSWCCR 8 Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473; [1992] HCA 21 Kassim v Busways Blacktown Pty Ltd (2003) 25 NSWCCR 450; [2003] NSWCC 6 Kostas v HIA Insurance Services Pty Ltd t/as Home Owners Warranty (2010) 241 CLR 390; [2010] HCA 32 Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282 Tarry v Warringah Shire Council (1974) WCR (NSW) 1 Texts Cited: M Aronson, M Groves and G Weeks (eds.), Judicial Review of Administrative Action and Government Liability (6th ed, 2017, Thomson Reuters) Category: Principal judgment Parties: Ballina Shire Council (Appellant / Cross-Respondent) Joshua Benjamin Knapp (Respondent / Cross-Appellant) Representation: Counsel: D J Hooke SC; S L Flett (Appellant / Cross-Respondent) J M Morris SC; M Hammond; R A Coffey (Respondent / Cross-Appellant)