Atomic Steel Constructions Pty Ltd v Tedeschi

[2013] NSWWCCPD 33

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:			Atomic Steel Constructions Pty Ltd v Tedeschi [2013] NSWWCCPD 33
APPELLANT:			Atomic Steel Constructions Pty Ltd
RESPONDENT:			Wayne Tedeschi
INSURER:			Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:			A1-7799/12
ARBITRATOR:	Ms N Serventy
DATE OF ARBITRATOR’S DECISION:			14 January 2013
DATE OF APPEAL HEARING:		31 May 2013
DATE OF APPEAL DECISION:			11 June 2013
SUBJECT MATTER OF DECISION:			Consent orders made under mistake; settlement made outside counsel’s instructions; application to set aside consent orders under reconsideration power; s 350(3) of the Workplace Injury Management and Workers Compensation Act 1998; whether mistake by legal representative can ground application for reconsideration; Hurst v Goodyear Tyre & Rubber Co (Australia) Ltd [1953] WCR 29 distinguished; consideration of irrelevant matters; failure to consider injustice to insurer; failure to give reasons; interests of justice; relevance of merits of substantive claim for compensation; Lewis v Combell Constructions Pty Ltd (1989) 18 NSWLR 528 and Broadbent v Medical Board ofQueensland [2010] QCA 352 discussed and distinguished; non-compliance with Practice Direction No 6; appeal unnecessarily protracted by appellant’s conduct; costs on appeal
PRESIDENTIAL MEMBER:			Deputy President Bill Roche
HEARING:			Oral
REPRESENTATION:			Appellant:	Mr B McManamey, instructed by Sparke Helmore Lawyers
Respondent:	Mr P Perry, instructed by Taylor & Scott Lawyers
ORDERS MADE ON APPEAL:			1.       The Arbitrator’s decision of 14 January 2013 is revoked and paragraphs 1 and 2 of the consent orders of 31 October 2012 are revoked. Paragraph 3 of the consent orders is confirmed. 2.       The matter is remitted to a different Arbitrator to determine the respondent worker’s claim on its merits. Costs of the second arbitration are to follow the result of that arbitration. 3.       The appellant employer is to pay part of the respondent worker’s costs of the appeal, assessed at $1,750, plus GST.

INTRODUCTION

1. In this matter, the parties settled the respondent worker’s claim for weekly compensation on terms that went outside the actual authority of counsel for the employer. The settlement required the employer to pay weekly compensation worth $91,845, when counsel only had authority to effect a settlement worth approximately $45,288 (and when, in any event, the maximum potential value of the claim was only $70,102.85). The Arbitrator refused the employer’s application that the consent orders be set aside, under the reconsideration power in s 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act), and the employer has challenged that refusal.

BACKGROUND TO THE SETTLEMENT

1. On 24 January 2001, the respondent worker, Wayne Tedeschi, suffered a serious injury to his right knee while riding his pushbike home from work. At the time of the accident, he had been working for the appellant, Atomic Steel Constructions Pty Ltd (Atomic), for about two weeks as a boilermaker/welder.

2. Atomic’s insurer, Allianz Australia Workers Commission (NSW) Ltd (Allianz), accepted liability for the injury and has paid lump sum compensation for permanent loss of efficient use of Mr Tedeschi’s right leg at…