Barter v Programmed Maintenance Services Ltd

[2004] NSWWCCPD 74

WORKERS COMPENSATION COMMISSION

REFERENCE OF A QUESTION OF LAW TO THE COMMISSION CONSTITUTED BY THE PRESIDENT

CITATION:Barter v Programmed Maintenance Services Ltd  [2004] NSWWCCPD 74

APPLICANT:  Scott Barter     

RESPONDENT:  Programmed Maintenance Services Ltd

INSURER:Allianz Australia Workers Compensation

FILE NUMBER:  WCC 2012-2004

DATE OF DECISION:  2 November  2004

SUBJECT MATTER OF QUESTION:               Power of Arbitrator in a threshold dispute under ss 313 and 314 of the 1998 Act

PRESIDENTIAL MEMBER:  President Justice Terry Sheahan

HEARING:On the papers

REPRESENTATION:  Appellant:    Taylor & Scott Lawyers

Respondent:  Sparke Helmore Lawyers

ORDERS MADE:  Leave to refer a Question of Law is refused. The Respondent is to pay the costs of this application.

1. On 2 August 2004 the solicitor acting for the Respondent submitted to the Commission a form of “Application for Leave to Refer a Question of Law” to which were annexed various documents in which a decision made by the Arbitrator on 5 July 2004 is challenged.

1. No specific “question” is clearly articulated in those documents, but I quote the following from an annexed “Statement”:

“The Arbitrator’s Decision of 5 July 2004, has essentially determined that despite the Applicant worker’s failure to comply with Rule 79 of the Commission Rules 2003, Section 313 of the 1998 Act, Section 282 of the 1998 Act, Section 281 of the Act, Section 260 of the 1998 Act and the WorkCover Guidelines Part 2, Rule 6 .11.4, the worker is nevertheless entitled to commence proceedings in the Commission and have the claim determined by the Commission. The ultimate question is whether the Arbitrator had the power to make that determination and did she err in doing so.”

1. The Respondent has also lodged an Application for Leave to bring an Appeal against the Arbitrator’s decision of 5 July 2004, and argues that “the material upon which the Arbitrator relied, as well as her own previous findings, could not as a matter of law support the ultimate finding made”. As the Respondent acknowledges, “the ultimate question is whether the Arbitrator had the power to make that determination and did she err in doing so”.

1. This is a classic question for an appeal and there is absolutely nothing “novel” or “complex”, within the meaning of these words as used in s 351 of the Workplace Injury Management & Workers Compensation Act 1998 (“the 1998 Act”), regarding a question of law, in a Presidential Member determining, on appeal, whether or not the Arbitrator “got it right or not”.
   
   

2. Having regard to s 354(6) of the 1998 Act, I am satisfied that I have sufficient information to proceed “on the papers” to determine the question of leave to refer the Question of Law, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

1. The Commission’s procedures presume that a Question of Law arises while a matter is before the Arbitrator and that the parties will make submissions to the Arbitrator as to whether the Arbitrator, and not a party, should refer up to the President for consideration a Question of Law, pursuant to s 351.

1. It is not unusual, indeed it is common, for issues of law to be raised during the hearing of an appeal. The Question of Law procedure is not the appropriate mechanism for a party to adopt when challenging a decision made by an Arbitrator. In the circumstances of this case so far, the central issue before the Arbitrator has been determined. That determination can be challenged on appeal, but it cannot be raised again for determination under the guise of a Question of Law.
   
   

2. I have drawn the distinction between the two processes on many occasions – see, especially, Dimmock v State of NSW [2004] NSW WCC PD 64 at pars [15] to [18].

1. The issues now confronting the Respondent in this case are appropriately matters for the appeal which the Respondent has sought to bring, and it is not appropriate for the President of the Commission to deal with the challenged decision as a Question of Law while such an appeal is pending.

1. Leave to refer the Question of law is refused, and the Respondent should pay the costs of this application.

1. Neither the Question of Law file, nor the Leave to Appeal file, contains any submissions from the Applicant, despite a Certificate of Service having been filed by the Respondent, and I direct that the Registrar now make such inquiries and/or issue such directions as may be necessary to have the application for leave to appeal determined as soon as possible.

Justice Terry Sheahan

President

2 November 2004

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUSTICE TERRY SHEAHAN, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE