Abush v Allnet Security Pty Limited
[2007] NSWWCCPD 2
•2 January 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Abush v Allnet Security Pty Limited [2007] NSWWCCPD 2
APPELLANT: Yarub Abush
RESPONDENT: Allnet Security Pty Limited
INSURER:CGU Workers Compensation (NSW) Limited
FILE NUMBER: WCC1691-06
DATE OF ARBITRATOR’S DECISION: 13 June 2006
DATE OF APPEAL DECISION: 2 January 2007
SUBJECT MATTER OF DECISION: Leave to appeal
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: CK Lawyers
Respondent: Sparke Helmore Lawyers
ORDERS MADE ON APPEAL: Leave to appeal is refused.
No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 24 August 2006 Yarub Abush (‘the Appellant Worker/Mr Abush’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 13 June 2006.
The Respondent to the Appeal is Allnet Security Pty Limited (‘the Respondent Employer’).
On 7 February 2006 the Appellant Worker filed an Application to Resolve a Dispute (‘the Application’) in the Commission seeking compensation as a result of an injury allegedly sustained by him whilst working for the Respondent Employer on 28 October 2001. The matter was listed for teleconference on 19 April 2006 when the Commission was advised that Mr Abush was overseas and would be returning to Australia on 15 May 2006. The Respondent Employer advised that Mr Abush had failed to attend a medical examination and that examination was rescheduled for 30 May 2006.
The Arbitrator issued a Direction to the parties on 19 April 2006 under Rule 69 of the Workers Compensation Commission Rules 2003 (see now Part 15 Rules 15.1 of the Workers Compensation Commission Rules 2006 (‘the 2006 Rules’)). Among other things, the Direction listed the matter for a conciliation and arbitration conference at 10am on 13 June 2006 at 1 Oxford Street, Sydney.
At 10.am on 13 June 2006 counsel for the Respondent Employer appeared at the conciliation and arbitration. An interpreter was also in attendance but there was no appearance by or on behalf of the Mr Abush. By 10.30am contact was made with the Appellant Worker’s solicitor and a teleconference was held. The solicitor indicated that Mr Abush was still overseas and could not be contacted to provide instructions. As a result, he sought a lengthy adjournment to allow for Mr Abush to be medically examined and for instructions to be obtained. The Respondent Employer’s counsel sought that the matter be struck out.
Arbitrator referred to the objectives of the Commission set out in section 367(1) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) and noted that proceedings in the Commission are designed as a ‘front loaded’ system “whereby all matters in the Commission should be ready to proceed in accordance with the Commission’s timeframes from the outset of commencement of proceedings” (Statement of Reasons for Decision, paragraph seven).
The Arbitrator considered that the matter was not ready to proceed and refused the application for an adjournment. Because of the non compliance with the Direction issued on 19 April 2006 and the non appearance of Mr Abush at the conciliation and arbitration the Arbitrator determined that the proceedings were a nullity and that they should therefore be struck out. That order was made. The Arbitrator also made no order as to costs.
The Appellant Worker seeks leave to appeal the Arbitrator’s costs order.
PRELIMINARY MATTERS
Section 354(6) of the 1998 Act provides:
“(6)If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 16 June 2006, records the Arbitrator’s orders as follows:
“1.That, by reason of the failure of the Applicant to comply with directions issued pursuant to Rule 69 to attend a conciliation conference and an arbitration hearing today, the proceedings are determined to be a nullity.
2.That the proceedings be struck out.
3.That no order is made as to costs.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are whether leave to appeal should be granted in respect of the costs order made on 16 June 2006 and whether time to appeal should be extended.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 the 1998 Act. Section 352(2) provides:
“352 Appeal against decision of Commission constituted by Arbitrator
(2) The Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal is both:
(a)at least $5,000 (or such other amount as may be prescribed by the regulations), and
(b)(b) at least 20% of the amount awarded in the decision appealed against.”
This provision makes it clear that the Commission is not to grant leave to appeal “unless the amount of compensation at issue on the appeal is” at least $5,000.00. The present appeal does not relate to an ‘amount of compensation’ but relates to the fact that the Arbitrator made no order as to costs.
Section 352 has been considered by the Commission in several cases. In Grimson v Integral Energy [2003] NSWWCC PD 29 Deputy President Fleming stated at [23]:
“The decision ‘no order as to costs’ clearly does not concern an ‘amount of compensation’, either in the appeal, or in the original claim. The costs associated with an application to the Commission are not themselves an amount of compensation under the Workers Compensation Acts. ‘Compensation’ is defined in section 4 of the 1998 Act as ‘compensation means compensation under the Workers Compensation Acts, and includes any monetary benefit under those Acts’. Chapter 4 of the 1998 Act deals with ‘Workers Compensation’. Part 3 of the 1987 Act deals with ‘Compensation-Benefits’. In the circumstances of this case there was no ‘amount of compensation at issue’ as the substantive proceedings had been discontinued.”
At paragraph [30] of Grimson Deputy President Fleming added:
“The preferred interpretation, in my view, is that the Commission, constituted by a Presidential Member, may grant leave only to appeal against a decision of an Arbitrator where there is an amount of compensation at issue on the appeal that is (a) at least $5,000, and, if a monetary award has been made, (b) at least 20% of that award. The ‘. . . amount of compensation at issue on the appeal’ is determined by reference to the amount of any monetary award made by the Arbitrator or, where no monetary award is made, the amount of the claim as particularized by the Applicant.”
The same result was reached in Borg v Garnville Pty Ltd [2003] NSWWCC PD 30, Benson v Integral Energy [2003] NSWWCC PD 37, Deeks v Harmer Steel Erections [2004] NSWWCC PD 48, Zeng v Inset Group Australia Pty Ltd [2004] NSWWCC PD 78 and Sorbello v Yellamo Pty Ltd and ors [2006] NSWWCCPD 91.
In the present case there is no award or order that puts any ‘amount of compensation’ at issue and, as a result, no ‘compensation’ is at issue on appeal. No submissions have been made suggesting that the above authorities are wrong and should not be applied in the matter before me. The Commission is a statutory body and its powers are derived from the relevant legislation. I believe the decisions referred to above are correct and their application to the matter before me leads to only one conclusion, leave to appeal must be and is refused.
Time
In view of the above finding it is not necessary for me to consider the Appellant Worker’s application to extend the time to appeal.
DECISION
Leave to appeal is refused.
COSTS
No order as to costs of the appeal.
Bill Roche
Deputy President
2 January 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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