Beale v Walgett District Hospital and anor

[2009] NSWWCCPD 60

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:			Beale v Walgett District Hospital and anor [2009] NSWWCCPD 60
APPELLANT:			Neville Beale
FIRST RESPONDENT:			Walgett District Hospital
SECOND RESPONDENT:		Far West Area Health Services
THIRD RESPONDENT:		Greater Western Area Health Service
INSURER:			GIO Workers Compensation (NSW) Ltd (Treasury Managed Funds)
FILE NUMBER:			A2-8129-08
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:			22 December 2008
DATE OF APPEAL DECISION:			1 June 2009
SUBJECT MATTER OF DECISION:			Section 352(2)(a) and (b) of the Workplace Injury Management and Workers Compensation Act 1998; leave to appeal; monetary thresholds; certification of reasonable prospects, section 352(7A) of the 1998 Act and section 345 of the Legal Profession Act 2004
PRESIDENTIAL MEMBER:			President, His Hon. Judge Keating
HEARING:			On the papers
REPRESENTATION:			Appellant:	McCabe Partners
First Respondent: Second Respondent: Third Respondent:		No appearance No appearance DLA Phillips Fox
ORDERS MADE ON APPEAL:			Leave to appeal the decision of the Arbitrator dated 22 December 2008 is refused.
No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

1. Mr Beale, the appellant worker, was a cleaner employed at Walgett Hospital.  On 13 October 2008, he brought proceedings in the Workers Compensation Commission (‘the Commission’) against his employers (Walgett District Hospital, Far West Area Health Services, and Greater Western Area Health Service), for injuries to his neck and shoulders sustained on various dates and as a result of the nature and conditions of his employment.

1. An arbitration hearing was held on 10 December 2008.  Mr Barber of counsel appeared for the respondents and Mr Perry of counsel appeared for the worker.  Mr Beale gave oral evidence and both counsel made submissions. 

1. The Arbitrator delivered an ex tempore decision at the conclusion of the hearing.  The reasons for his decision were recorded and a transcript of the proceedings was issued to the parties on 9 March 2009. 

1. The Arbitrator found that Mr Beale’s employment aggravated and exacerbated a degenerative condition in his neck and shoulders.  He found a deemed date of injury of 10 September 2007, the last day of Mr Beale’s employment with the third respondent.  The Arbitrator made an award in favour of Mr Beale for weekly compensation benefits and section 60 expenses and the matter was referred to the Registrar for referral to an Approved Medical Specialist.  The Arbitrator also made an award for the respondents in respect of the claim for domestic assistance.

1. The award made by the Arbitrator was only against the third respondent, Greater Western Area Health Service, which is the only respondent represented on the appeal.

1. At the arbitration hearing counsel for the worker submitted that the insurer had failed to comply with a Notice for Production in respect of the production of a report from Dr Christie following his examination of the worker on 26 June 1997, and submitted the matter should be referred to the Registrar under section 75 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), for a report to be made to the WorkCover Authority.

1. The Arbitrator in his ex tempore decision at (T68.42), stated:

“And, finally, I’ll refer this matter to the Registrar for referral to the Authority pursuant to section 75.”

1. Twelve days after delivering his decision orally, a ‘Certificate of Determination’ issued on 22 December 2008.  It included the Arbitrator’s findings, orders and short written reasons on “complexity” and “as to refusal to refer to the Registrar”.  In relation to the referral to the Registrar, the Arbitrator revoked his ex tempore decision and declined to refer the matter to the Registrar.

1. On 23 January 2009, Mr Beale sought leave to bring an ‘Appeal Against Decision of Arbitrator’ (‘the Application’) in the Commission.  Mr Beale seeks to appeal only that part of the Arbitrator’s decision in respect of his declining to refer the matter to the Registrar for referral to the WorkCover Authority

1. The respondent filed a ‘Notice of Opposition to Appeal Against Decision of Arbitrator’ on 14 April 2009.

THE DECISION UNDER REVIEW

1. The Arbitrator’s orders and written reason in relation to that part of his decision dated 22 December 2008, the subject of this appeal, are extracted below:

“Short reasons as to the refusal to refer to the Registrar

During the hearing Mr Perry for applicant proved that the applicant had been seen for the respondent by a Dr Christie on 26 June 1997. On 10 June 2008 the solicitors for the applicant wrote to the insurer and the respondent identical letters seeking amongst other things the production under s.119(5) of medical reports the insurer was in possession of. Section 119(5) provides that the regulations may make provision for requiring an employer or insurer to provide a medical report given to the employer or insurer. The regulation (Part 9 R 40 Workers Compensation Regulations [sic] 2003) governing access to medical opinion or reports obtained by the employer was repealed in 2006. It is clear therefore that the legislative intent is that there should not be an automatic right by injured workers to medical reports obtained by the employer or its insurer.

Therefore the effect of a failure by the insurer or the employer to supply any medical reports concerned would now appear to have no repercussions at all.  Mr Perry proved the consultation with Dr Christie by referring to Exhibit K at page 115 of the Application to Resolve a Dispute, which was a letter from the insurer to the applicant requesting him to attend a medical examination with Dr Christie in Orange on 26 June 1997 at 12pm, the insurer’s letter being dated 11 June 1997.  The worker gave evidence that he duly attended that consultation.  A call was made by Mr Perry for the applicant for the production of Dr Christie’s report.  Mr Barber for the respondent could not produce the report.

Mr Perry then sought orders referring the insurer to the WorkCover Authority. Upon being asked what power I had to do so, he advised that s.75 1998 Act gave that power. I then indicated I would make the referral to the Registrar, but, having researched the matter further, now decline to do so in view of the above mentioned repeal of the relevant regulation.”

ON THE PAPERS REVIEW

1. 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.”

1. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission 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. 

LEAVE

1. Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. That section provides:

“352 Appeal against decision of Commission constituted by Arbitrator

(1)A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.

(1A)An appeal is to be made by application to the Registrar. The appeal is not to proceed unless the registrar is satisfied that the requirements of this section and any applicable rules and regulations as to the making of an appeal have been complied with.

(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)at least 20% of the amount awarded in the decision appealed against.

(3)If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.

(4)An appeal can only be made within 28 days after the making of the decision appealed against.

(5)An appeal under this section is to be by way of review of the decision appealed against.

(6)Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.

(7)On appeal, the decision may be confirmed or may be revoked and a new decision made in its place. Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.

(7A) Section 345 of the legal profession Act 2004 applies to and in respect of legal services in connection with an appeal to the Commission under this section in the same way it applies to and in respect of the provision of legal services in connection with a claim or defence of a claim for damages referred to in that section.

(8)In this section, decision includes an award, interim award, order, determination, ruling and direction but does not include any award, order determination, ruling or direction of an interlocutory nature prescribed by regulations.” (emphasis added)

1. The appeal was initially filed on 23 January 2009, under cover of a letter dated 21 January 2009. This was outside the 28-day period for lodging appeals. 

1. Submissions in support of an application seeking leave to file the appeal out of time were annexed to the Application. There were however no submissions addressing the monetary threshold requirements in section 352(2)(a) and (b).

1. The letter dated 21 January 2009, in addition to noting that “Application –Appeal Against Decision of Arbitrator dated 20 January 2009” and “Submissions by David McCabe dated 20 January 2009” were enclosed, included the following paragraph:

“We request that Arbitrator John Wynyard review his determination dated 22 December 2008 pursuant to Section 353 of the Workplace Injury Management Act 1998 [sic].”

1. The Registrar, by her delegate, by letter dated 28 January 2009, rejected the appeal under section 352(1A) of the 1998 Act and requested clarification as to whether any other application was being made. The Registrar delegate’s letter reads:

“We refer to Application – Appeal Against Decision of Arbitrator lodged on 21 January 2009.

Section 352 of the 1998 Act governs appeals from decisions of the Commission constituted by an Arbitrator.

Under section 352(1A) of the 1998 Act, an “appeal is not to proceed unless the Registrar is satisfied that the requirements of this section and any applicable rules and regulations as to the making of an appeal have been complied with.”

Pursuant to section 352(2) the Commission is not to grant leave to appeal unless the amount of compensation at issue on appeal is both, at least $5,000 (or such other amount as may be prescribed by the regulations), and at least 20% of the amount awarded in the decision appealed against.

The application has been rejected for failure to attach submissions on threshold issues relating to the granting of leave, including the amount of compensation the subject of the appeal and the percentage of the amount awarded which is the subject of the appeal, pursuant to 352(2) of the 1998 Act.

In relation to the request that Arbitrator Wynyard review his decision pursuant to section 353 of the 1998 Act, this section deals with appeals from Presidential members to the Court of Appeal. Please confirm if an application in addition to the appeal is made and upon what basis it is made.”

1. In response to the above letter, the appellant re-lodged the appeal on 2 March 2009, under cover of a letter incorrectly dated 25 February 2009. This letter contained submissions purportedly addressing the threshold requirements under section 352(2) of the 1998 Act. The appellant’s solicitor however did not clarify if he was making an application in addition to the appeal.

1. On 3 March 2009, the Commission again wrote to the appellant’s solicitor as follows:

“We refer to your correspondence dated 21 January 2009 in which you made the following request:

“We request that Arbitrator John Wynyard review his determination dated 22 December 2008 pursuant to Section 353 of the Workplace Injury Management Act 1998.”

We refer to our correspondence dated 28 January 2009 seeking confirmation as to whether your client makes an application, in addition to the appeal and upon what basis such an application is made.

Please confirm whether an application is made in addition to the appeal made under section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). Please detail the application and the relevant section of the 1998 Act under which it is made.

If we do not receive a response, we will assume that the only application made by your client is the appeal under section 352 of the 1998 Act.”

1. The Commission did not receive a response to this letter, however undercover of a letter dated 5 March 2009, the appellant’s solicitor filed a ‘Certificate of Service’ confirming service of the “Sealed Form 9 Appeal Against Decision of Arbitrator” in the appeal proceedings.

Time

1. The appellant submits that time to appeal should be extended because the Certificate of Determination dated 22 December 2008 was “…received when our office reopened after the Christmas break on 12 January 2009”.  Further, it is submitted:

“The aim of the Workers Compensation Commission is to provide the fair, just, timely and cost effective resolution of workers compensation disputes in New South Wales.

Further, the objectives the Workers Compensation Commission with regards to equity, is to provide a flexible procedure that is responsive to the needs of the individual case and which allows the efficient and timely processes that provide for a just resolution of disputes.

It is submitted that if the Workers Compensation Commission was to reject this Appeal the Applicant would have a substantial injustice that losing the right to seek leave to appeal would cause.

Therefore we seek an extension of time.”

1. The respondent relies on Roads and Traffic Authority of NSW v Cormick [2007] NSWWCCPD 220 and submits that the appellant’s solicitor has failed to provide any reasons why there were exceptional circumstances that prevented the appeal being filed by 19 January 2009. Further, it is submitted that the appeal relates to an interlocutory matter that does not affect the appellant’s entitlement to compensation and therefore there would be no injustice suffered by the appellant if leave to appeal was refused.

1. The appellant requires an extension of time pursuant to Rule 16.2(11) of the Workers Compensation Commission Rules 2006 (‘the Rules’), if leave to appeal is to be granted. That rule provides:

“The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”

1. The following passage from the judgment of McHugh J in Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 has frequently been applied in Presidential decisions dealing with this discretion:

“The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes at 263-4, Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201.” (at 480)

1. In considering whether an extension should be granted, for the purpose of doing justice between the parties, it is necessary to consider the prospects of success of the appeal. In doing so it is necessary to consider the additional threshold requirement for the granting of leave under section 352, including whether the monetary thresholds in section 352(2) of the 1998 Act are met.

1. The appellant’s submissions on the application of the monetary threshold provisions in section 352(2) relate only to the second limb as contained in section 352(2)(b) and rely on Mawson v Fletchers International Exports Pty Limited [2002] NSWWCCPD 5 (‘Mawson’).

1. The appellant submits that Mawson held “…that the 20% threshold requirement in section 352(2)(a) does not apply where no amount of compensation is awarded in the decision appealed against.”

1. In respect of the monetary thresholds, the respondent submits (at paragraph 2.2.3) that:

“There is no submission as to whether the appeal filed by the appellant’s solicitors relates to an amount of compensation awarded. It is the Respondent’s respectful submission that the appeal is not founded upon the Appellant worker’s entitlement to compensation but rather an interlocutory matter upon which the Arbitrator decided against the Appellant’s Solicitor.”

1. The term ‘compensation’ is defined in section 4 of the 1998 Act as follows:

“compensation means compensation under the Workers Compensation Acts, and includes any monetary benefit under those Acts.” (emphasis added)

1. The appellant relies on Mawson where Deputy President Bryon said at [22]:

“22. No amount was awarded in the decision appealed against. An award was not an appropriate outcome given that the dispute before the Arbitrator was entirely related to applications for directions and not to the merits or other aspects of the substantive claim made by Mr. Mawson, and which is in dispute before the Commission, but not yet dealt with. While a reference to the Second Reading Speech was not helpful on the particular point, a “meaningful result” is not achieved by merely ignoring the provisions of subsection (8) of section 352. It seems that “20%” in subsection (2)(b) is limited to a decision in which an award is made and that the operation of this subsection does not preclude appeals against decisions in which no award was made. The purpose of subsection 2(b) in my view, applies a qualification or condition that must be met before leave to appeal is granted against a decision in which an award is made, but that particular qualification or condition does not and cannot meaningfully apply to a decision where this is not the case.”

1. However, the principal relief sought in Mawson was weekly compensation.  It was not disputed that the amount of compensation ‘at issue’ in the appeal in that case was greater than $5,000.00 (see Mawson at [14]). That is not the case in the present matter.

1. The amount of compensation at issue on the appeal must be determined by reference to the amount of compensation at issue in the proceedings before the Arbitrator at first instance.  In Robert Grimson v Integral Energy [2003] NSWWCCPD 29 at [30] Deputy President Fleming held:

“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.”

1. As was held in Fletchers International Exports Pty Ltd v Regan [2004] NSWWCCPD 7 at [27]:

“…The decision must have a real capacity to put the amount of compensation, determined by reference to the decision or the claim (Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSWWCC PD 3), in issue in the appeal (as in the case of the filing of a ‘Reply’ (ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCC PD21)).”

1. In the present case, the appellant does not seek to challenge on appeal any part of the award of compensation made in his favour, but challenges only the Arbitrator’s refusal to refer the matter to the Registrar under section 75 of the 1998 Act. The appellant’s submissions on appeal focus on particular legislative provisions and applicable regulations but make no submission on the relief he is seeking on appeal. I infer that the relief sought is that the Arbitrator’s decision not to refer the matter to the Registrar for report to the Authority is revoked and the matter duly reported.

1. Whilst there was clearly a procedural irregularity in the Arbitrator revoking part of his ex tempore decision, without notifying the parties and giving them an opportunity to make further submissions, it is irrelevant to the appeal because the appeal is without merit and misconceived. No “compensation” is “at issue” on appeal and the appeal does not meet the thresholds in section 352(2). Therefore there is no basis upon which to exercise my discretion to extend time to appeal and the application for leave to appeal is refused.

Other

1. The Arbitrator’s comments reproduced at [11] above related to a number of distinct issues and are incorrect in several respects. Firstly, the Arbitrator’s reference to section 75 of the 1998 was misguided. Section 75 deals with unreasonable conduct by insurers in several specific circumstances, none of which apply in this case.

1. Secondly, section 119 of the 1998 Act deals with medical examinations of workers at the direction of employers. In accordance with section 119(5), regulations may govern obligations on the employer or insurer to provide copies of the reports in connection with such medical examinations. Although clause 40 of the Workers Compensation Regulation 2003 was repealed on 1 November 2006, clause 37 became operational on that day.

1. Clause 37 governs access to medical and other reports and information as detailed in clause 37(1) as follows:

“(1)  This clause applies to the following types of reports that an employer or insurer has in the employer’s or insurer’s possession:

(a)medical reports, including medical reports provided pursuant to section 119 of the 1998 Act (Medical examination of workers at direction of employer),

(b)  medical certificates,

(c)  clinical notes,

(d)  investigators’ reports,

(e)occupational rehabilitation providers’ reports,

(f)health service providers’ reports,

(g)reports of assessments under section 40A (Assessment of incapacitated worker’s ability to earn) of the 1987 Act,

(h)reports obtained by or provided to an employer or insurer that contain information relevant to the claim on which a decision to dispute liability is made,

1. wage details required to be supplied under section 43 (2) of the 1987 Act where a decision has been made to decline payment of, or reduce the amount of, weekly benefits, but only if such details have not already been supplied to the worker” (emphasis added).

1. Clauses 37(3) and (4) provide:

“(3)  If an employer or insurer makes a decision to which this clause applies, the employer or insurer must provide a copy of any relevant report to which this clause applies to the worker, as an attachment to a notice under section 74 of the 1998 Act, section 54 of the 1987 Act or section 287A of the 1998 Act, as the case may be, except where the report has already been supplied to the worker and that report is identified in a statement under clause 15 (1) (c) or 34 (1) (d).

1. The obligation in this clause to provide a copy of a report applies to any report that is relevant to the claim or any aspect of the claim to which the decision relates, whether or not the report supports the reasons for the decision” (emphasis added)

1. The Regulation expressly applies to reports obtained under section 119 of the 1998 Act, and makes the provision of those reports to injured workers a mandatory requirement on employers or insurers, to provide a copy of any relevant report to which the clause applies (clause 37(3)) and the obligation extends to the provision of reports relevant to the claim or any aspect of the claim to which the decision relates, whether or not the report supports the reason for the decision (clause 37(4)).  This is subject only to the exception in clause 37(5) (where the provision of a report would pose a serious threat to the life or health of the worker or another person).

1. The sanctions for non compliance in relation to reports obtained under section 119 of the 1998 Act are set out in section 119(6) and are as follows:

“(6)   If an employer or insurer fails to provide a copy of an opinion or report as required by the regulations under subsection (5):

(a)the employer or insurer cannot use the opinion or report to dispute liability to pay or continue to pay compensation or to reduce the amount of compensation to be paid and cannot use the opinion or report for any other purpose prescribed by the regulations for the purposes of this section, and

(b)   the opinion or report is not admissible in proceedings on such a dispute before the Commission, and

(c) the opinion or report may not be disclosed to an approved medical specialist or an Appeal Panel in connection with the assessment of a medical dispute under Part 7 of Chapter 7.”

1. Finally, if production of the report of Dr Christie was requested under a Notice for Production, under Part 12 of the Rules, the requirements for service of the notice, compliance with the notice and objection to the notice are spelt out clearly in the Rules. Strict time limits apply to each step. A Notice for Production must be served within 21 days from the date of registration of the Application to Resolve a Dispute in the proceedings (Part 12 Rule 12.3(1) and it must be complied with within 7 days of service of the Notice for Production (Part 12 Rule 12(3)(2)).

1. If a party objects to producing a document in response to a Notice for Production, the party must file a Notice of Objection under the Rules. Where a party has failed to comply with a Notice for Production, in accordance with Part 12 Rule 12.4(2), the requesting party may request that the Registrar refer the matter to the WorkCover Authority for consideration as to prosecution of the producer for an offence under section 290(2) of the 1998 Act and the Commission may make such determination as to costs as it thinks fit.

DECISION

1. Leave to appeal the decision of the arbitrator dated 22 December 2008 is refused.

COSTS

1. The respondent submits that a costs order should be made against the appellant’s solicitor, given the appellant’s solicitor made a certification under section 352(7A) and section 345 Legal Profession Act 2004 (‘LPA’) and the appeal “falls well short of any standard required by the Workers Compensation Commission”.

1. The appeal was clearly without merit, had no reasonable prospect of success and should not have been filed.  On the face of it, there was no basis for the certification signed by Mr David McCabe on 20 January 2008 [sic-2009], in Part 3 of the Appeal Against Decision of Arbitrator.  I am most concerned that similar comments were made about this practitioner’s conduct in Graziani v Burrangong Pet Food Pty Ltd [2007] NSWWCCPD 215 (‘Graziani’) and the conduct has been repeated in the filing and certification of this completely unmeritorious appeal.

1. Practitioners should be aware that the provision of legal services by a legal practice without reasonable prospects of success is capable of being unsatisfactory professional conduct or professional misconduct by a legal practitioner. 

1. McCabe Partners’ conduct in this matter has been most unsatisfactory and certainly warranting of an adverse cost. However, I agree with Deputy President Roche in Graziani that other than in the limited circumstances set out in section 344 of the 1998 Act, the Commission does not have a general power to order costs.  In Graziani, Deputy President Roche held at [59] – [61]:

“59. Costs on appeal to a Presidential member are dealt with in section 345 of the 1998 Act which provides:

‘345 Costs penalties where appeal is unsuccessful

(1)On an appeal from the Commission constituted by an Arbitrator to the Commission constituted by a Presidential member:

(a)if the appellant is unsuccessful on the appeal, the Commission is to order that the appellant’s costs on the appeal are not to be paid by any other party to the appeal, and

(b)if the appellant is an insurer (other than a licensed insurer that maintains a statutory fund under the 1987 Act) and is unsuccessful on the appeal, the Commission may order the insurer to pay to the Authority for payment into the WorkCover Authority Fund an administration fee of $1,000 or such other amount as may be prescribed by the regulations.

(2)A costs agreement within the meaning of Part 3.2 of the Legal Profession Act 2004 is of no effect to the extent to which it relates to costs the subject of an order in force under subsection (1) (a).

(3)If an appeal concerns lump sum compensation, weekly payments of compensation or medical expenses compensation, the appellant is considered to be unsuccessful on the appeal unless the decision on appeal results in a change in favour of the appellant in the amount awarded or ordered to be paid in the decision appealed against of at least $5,000 (or such other amount as may be prescribed by the regulations) and at least 20% of the amount awarded or ordered to be paid.

(4)An administration fee that an insurer is ordered to pay is recoverable as a debt due to the Authority.

(5)The Registrar is to notify the Authority of an order to an insurer under this section to pay an administration fee.’

60.Whilst section 341(2) states that the Commission has power to determine “by whom” costs are to be paid, that provision is subject to section 340 which makes it clear that the Division only applies to “costs payable by a party” (see Weereratne v Railway Services Authority (NSW) (1999) 18 NSWCCR 135). Therefore, except in the very limited and specific circumstances set out in section 344, I do not believe the Commission has a general power to order costs against a legal practitioner.

61.Section 344 gives the Commission a discretion, at any stage of a matter, to make certain orders in respect of a legal practitioner whose “serious neglect, serious incompetence or serious misconduct delays, or contributes to delaying, the matter”.  There are two points to note about section 344.  First, it only operates after an order for costs has been made against the legal practitioner’s client.  As noted above, no such order is sought against Mr Graziani on appeal.  Second, the present matter does not concern the ‘delaying’ of a matter, but concerns the making of an application without any proper support and the bringing of an appeal that had no prospect of success.  The terms of section 344 do not cover the situation before me.  The appeal is without merit and leave to appeal is refused.  However, no conduct by Mr Graziani’s solicitor contributed to the ‘delaying’ of the matter.  Therefore, there is no basis for ordering costs against Mr Graziani’s solicitor in respect of the appeal and I decline to do so.”

1. As in Graziani, Mr Beale’s solicitor’s conduct has not contributed to the ‘delaying’ of this matter and there is no basis for ordering costs against his solicitor.

1. I therefore make no order as to costs of the appeal.

Solicitor certification

1. The number of unmeritorious appeals filed in this Commission is a matter of great concern. The apparent disregard, by a small number of practitioners, for their duty under section 345 of the LPA and section 352(7A) of the 1998 Act results in a significant waste of the Commission’s resources and delays the hearing of appeals, properly instituted.

1. As can be seen from Arifagic v Gate Gourmet Services Pty Limited [2005] NSWWCCPD 96, Calleja v Real Foods Pty Ltd [2006] NSWWCCPD 54, Woodbury v Peter Miles and Annie Miles (No.1) [2008] NSWWCCPD 91, Woodbury v Peter Miles and Annie Miles (No.2) [2008] NSWWCCPD 92, Hogan v Mercy Care Centre Young [2008] NSWWCCPD 119, Graziani and Smith v Walgett Shire Council [2009] NSWWCCPD 45, Mr McCabe has been responsible for filing numerous unmeritorious appeals under section 352 of the 1998 Act. The prospect that such conduct may constitute unsatisfactory professional conduct or professional misconduct has been drawn his attention (see Graziani), apparently with little or no effect.

1. In the absence of a satisfactory costs sanction against the practitioner, and having regard to the repetitive nature of his apparent disregard for his duty under section 345 of the LPA and section 352(7A) of the 1998 Act, I consider the appropriate course is to refer the matter to the Legal Services Commissioner of NSW for such action as he may consider appropriate in the circumstances. That is the course I propose to adopt.

His Hon. Judge Keating

President

1 June 2009

I, MELANIE CURTIN, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF HIS HON. JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE