Bailey v Burrangong Skin & Hides Pty Ltd
[2004] NSWWCCPD 59
•26 August 2004
WORKERS COMPENSATION COMMISSION
APPEAL FROM REGISTRAR’S DETERMINATION ON COSTS
CITATION:Bailey v Burrangong Skin & Hides Pty Ltd [2004] NSWWCCPD 59
APPELLANT: Brian Bailey
RESPONDENT: Burrangong Skin & Hides Pty Ltd
INSURER:NRMA Workers Compensation (NSW)(No. 2) Pty Ltd
FILE NUMBER: WCC 3640-2004
DATE OF REGISTRAR’S DECISION: 28 May 2004
DATE OF APPEAL DECISION: 26 August 2004
SUBJECT MATTER OF DECISION: Appeal against costs; Determination by Registrar; Procedural fairness; Workers Compensation Regulation 2003, Clause 119.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming
HEARING:On the papers
REPRESENTATION: Appellant: McCabe Partners Lawyers
Respondent: Moray & Agnew Solicitors
ORDERS MADE ON APPEAL: The decision of the Registrar is affirmed.
THE APPEAL
On 25 June 2004 Brian Bailey (‘the Appellant’) sought leave to bring an ‘Appeal from Registrar’s Determination on Costs’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 28 May 2004.
The Respondent to the Appeal is Burrangong Skin & Hides Pty Ltd (‘the Respondent’). The relevant insurer, for the purposes of the appeal, is GIO Workers Compensation (NSW) Ltd.
The Registrar delegated the assessment of costs to an Arbitrator pursuant to section 371(2) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). The Certificate of Determination of Applicant’s Costs, dated 28 May 2004, records the Registrar’s orders as follows:
“The costs are assessed as follows:
1. The Applicant’s costs of the proceedings are assessed at $6,968.50.
2. The Applicant’s costs of the assessment are not allowed.
Determination
It is further determined that:
3.The Respondent is to pay the amount of $6,968.50 to the Applicant if those costs have not already been paid.”
The Appellant seeks to have the decision of the Registrar revoked on the basis that the Registrar did not take into account a letter from the Appellant dated 21 May 2004, “which contains or opinions as to why the matter needs to be appealed”.
The Respondent argues that leave to appeal should not be granted as the Appellant’s letter dated 21 May 2004 was filed out of time and that it was reasonable and appropriate for the Registrar’s Delegate to not consider this letter.
The appeal was referred to me on 23 August 2004.
ON THE PAPERS REVIEW
Neither the Appellant nor the Respondent have made any submissions as to whether the matter may be determined on the papers.
Section 354(6) of the 1998 Act provides, “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.”
I have before me all the documents filed in the original costs dispute before the Registrar’s Delegate, and in the appeal including the written submissions from both parties.
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.
JURISDICTION
Part 19 of the Regulation (made pursuant to section 347 of the 1998 Act) provides for the determination of ‘costs’ in matters before the Commission. The process for the assessment of costs, by the Registrar, is set out at Division 4 of Part 19. Subdivision 5 of Division 4, Clause 119 provides as follows:
“119 Appeal against decision of Registrar as to matter of law
(1)A party to an application who is dissatisfied with a decision of the Registrar as to a matter of law arising in the proceedings to determine the application may, in accordance with the Rules of the Commission, appeal to the Commission constituted by a Presidential member against the decision.
(2)The appeal is to be in the form approved by the Commission and be accompanied by the fee approved by the Commission from time to time.
(3)After deciding the question the subject of the appeal, the Commission constituted by a Presidential member may, unless it affirms the Registrar’s decision:
(a)make such determination in relation to the application as, in its opinion should have been made by the Registrar, or
(b)remit its decision on the question to the Registrar and order the Registrar to re-determine the application.
(4)On a re-determination of an application, fresh evidence, or evidence in addition to or in substitution for the evidence received at the original proceedings, may be given.”
SUBMISSIONS
The Appellant’s only submission on the appeal is that the Registrar’s Delegate did not refer to their letter dated 21 May 2004.
The Respondent submits that this is not a valid ground of appeal because:
“(a)By letter dated 10 March 2004, the Registrar directed that the respondent file and serve written submissions in reply by 24 March 2004 and that the appellant then ‘be given a further 7 days after service of the respondent’s written submissions to file and serve written submissions in reply’.
(b) The respondent’s submissions in reply dated 23 March 2004 were served on the appellant by letter dated 23 March 2004.
(c) No written submissions in reply were ever served on the respondent and the respondent was not aware of the appellant’s letter dated 21 May 2004 until receipt of this appeal.
(d) The appellant’s letter dated 21 May 2004 was evidently filed well out of time.”
DISCUSSION AND FINDINGS
The Appellant may only appeal against a Registrar’s determination of costs on a ‘matter of law’ (Clause 119 of the Regulation). Part 3A of the Form 16 Application ‘Appeal from Registrar’s Determination on Costs’, requires the Appellant to ‘state fully the question/s of law on which the application for appeal is/are based’.
The Appellant has failed to articulate a question of law pursuant to Clause 119. The Appellant’s only claim is the alleged failure by the Registrar’s delegate to take into consideration the submissions contained in the letter of 21 May 2004.
I have considered whether the Appellant’s argument on this appeal is that he has been denied procedural fairness. Procedural fairness provides that a person who is affected by a decision has a right to notice of the case against him or her, to be heard in relation to it, and to have the matter decided by an unbiased decision-maker. Express statutory provisions may modify the common law requirements. The exact content of procedural fairness in Commission proceedings is determined by the 1998 Act, the nature of the decision under review and the demands of the instant case (Kioa v West [1995] 159 CLR 550).
In this matter, the Registrar, by letter dated 10 March 2004, directed the Appellant to file and serve submissions in reply within 7 days after service of the Respondent’s submissions to the Application. As the Appellant has not disputed whether the Respondent’s submissions were served upon them, I accept that the Appellant was served with the Respondent’s submissions on or around 24 March 2004. The Appellant was therefore required to file and serve submissions in reply by 31 March 2004.
On 17 May 2004, the matter was referred to the Registrar’s Delegate for determination based on the documents that were before the Commission. On that day, a letter was sent to the parties advising that the matter had been referred to a costs assessor for determination on the basis of the written application and submissions already received.
The Appellant’s submissions in reply were not filed until 21 May 2004, which was some 51 days after the date they were due. No accompanying ‘Certificate of Service’ was filed indicating service upon the Respondent, and the Respondent has denied receiving the submissions until this appeal was filed. Accordingly, the Registrar’s Delegate determined the matter in the absence of the Appellant’s submissions in reply and issued the decision on 28 May 2004.
In the circumstances of the lengthy and unexplained delay on the part of the Appellant, I accept the Respondent’s submission that it was reasonable and appropriate for the Registrar’s Delegate to determine the matter without taking into consideration the submissions in reply from the Appellant. I find that the Appellant was not denied procedural fairness as they were given an opportunity of making submissions in reply in accordance with the Commission’s directions. The Appellant has failed to comply with those directions and has not explained the reasons for the delay nor sought an application for an extension of time.
I am satisfied that the Registrar’s decision is not affected by an error of law.
DECISION
The decision of the Registrar’s Delegate is affirmed.
Dr Gabriel Fleming
Deputy President
26 August 2004
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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