Benson v Integral Energy
[2003] NSWWCCPD 37
•8 December 2003
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
__________________________________________________________________
| CITATION: | Christine Francis Benson v Integral Energy [2003] NSW WCC PD37 |
| APPELLANT: | Integral Energy |
| RESPONDENT: | Christine Francis Benson |
| INSURER: | Integral Energy |
| FILE NO: | WCC 21-2002 |
| DATE OF ARBITRATOR’S DECISION: | 31 July 2003 |
| DATE OF APPEAL DECISION: | 8 December 2003 |
| SUBJECT MATTER OF DECISION: | Application for Leave to appeal against a decision relating only to costs, threshold issues, subsection 352(2) of the 1998 Act. |
| PRESIDENTIAL MEMBER: | Deputy President Dr Gabriel Fleming |
| HEARING: | On the Papers |
| REPRESENTATION: | Appellant: Leigh Virtue & Associates |
| Respondent: White Barnes | |
| ORDERS MADE ON APPEAL: | Leave to appeal against the decision of the Arbitrator is refused. |
THE APPEAL
On 12 August 2003, Integral Energy (‘the Appellant Insurer’), lodged an ‘Application for Appeal Against a Decision of an Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 31 July 2003. The Respondent to the appeal is Christine Francis Benson (‘the Respondent Worker’). Submissions were filed by the Appellant on 12 August 2003, and the Respondent on 9 October 2003.
The appeal concerns an order for costs made by an Arbitrator in Commission proceedings, following the discontinuance of those proceedings by the worker, who was the Applicant. Prior to the discontinuance, two telephone conferences had been held and the medical dispute had been the subject of a Medical Assessment Certificate issued by an Approved Medical Specialist.
The Certificate of Determination and attached brief Statement of Reasons was issued by the Commission on 31 July 2003 and sets out the costs order as follows: . . . that the Respondent is to pay the Applicant’s costs other than under Part 1 of the Compensation Costs Table under Schedule 6, such costs to be assessed if not agreed.
The matter was referred to me for review on 25 November 2003.
The Appellant Insurer seeks orders that the Arbitrator’s decision be revoked and a new decision made that the Respondent Worker pay the Appellant Insurer’s costs in the proceedings, or in the alternative, that there be no order as to costs.
The Respondent Worker seeks orders that the Appeal be dismissed and the Appellant Employer pay the Respondent Worker’s costs of the Appeal.
ON THE PAPERS REVIEW
Section 354(6) of the Act provides:
354 Procedure before Commission
(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.
The Appellant submits that the matter can only be dealt with on the papers if,
“. . .leave is granted and the appeal is allowed, but otherwise the matter cannot be dealt with on the papers and a hearing date is required”.The Respondent submits that the matter can be determined on the papers.
Having regard to President’s Direction Number 1 of 2002, the submissions that have been made by both parties, and the documents that are before me, 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 of this matter.
JURISDICTION TO HEAR THE APPEAL
Before proceeding to hear the appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), as follows:
352Appeal 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.
(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.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.
The Appeal was lodged within 28 days of the Arbitrator’s decision in compliance with subsection 352(4) of the 1998 Act.
Whether the Appellant Insurer can meet the threshold requirements of subsection 352(2) of the 1998 Act is in dispute as the decision under review only concerns an award of costs.
The Appellant Insurer submits that the provisions of subsection 352(2) of the 1998 Act have no application, as the decision of the Arbitrator does not involve an award of compensation (Mawson v Fletcher International Exports Pty Ltd [2002] NSW WCC PD 5). In the alternative, “…if the award of the Arbitrator is regarded as being an amount of compensation....the amount which is not yet ascertained satisfies the requirements of s352(2) in any event being at least $5000 and noting the appeal to be in respect of 100% of the amount awarded”.
The Appellant Insurer submits that the worker’s claim was brought without proper justification, therefore she should be ordered to pay the insurer’s costs, or in the alternative, there should be no order as to costs.
The Respondent Worker submits that the totality of the costs and disbursements in this matter will not amount to $5000. She submits that Mawson v Fletcher International Exports Pty Ltd [2002] NSW WCC PD 5 is not relevant, as in that case the “…quantum of the matters in issue were at large. In the present circumstances.…there is only a question of costs, which will not exceed the jurisdictional limit”. The Respondent Worker submits the Arbitrator’s decision was appropriate as the worker had not taken any steps that were unreasonable and had acted appropriately, with a view to saving costs and additional activity, once the AMS’s certificate was issued.
DISCUSSION AND FINDINGS
Subsection 352(2) of the 1998 Act provides that “[t]he Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal” is both at least $5,000 and more than 20% of the amount awarded in the decision appealed against. Where the substantive proceedings before the Arbitrator are discontinued, and the appeal relates only to an issue of costs, there is no dispute before the Commission about an amount of compensation. An order for costs does not concern an amount of compensation either in the appeal or in the original claim (Borg v Garnville Pty Ltd [2003] NSW WCC PD 30, see also Grimson v Integral Energy NSW WCC PD 29).
Where a matter had been discontinued and there is effectively no amount of compensation in dispute between the parties, the application of the threshold test for leave to appeal in subsection 352(2) of the 1998 is not met. Therefore, I do not have the jurisdiction to hear it.
Even if I were wrong in the above interpretation, there is no evidence that the amount of costs at issue in this appeal is at least $5000. Having regard to the applicable ‘Compensation Costs Table’ in Schedule 6 of the WorkersCompensation Regulation 2003, the maximum amount payable in costs in these proceedings, which did not reach a conciliation or arbitration hearing, is likely to fall below $5000.
I note that the Appellant Insurer has made a number of submissions in relation to the Arbitrator’s understanding of the relevant law applicable to the power to award costs in this matter. I am in agreement with some of these submissions and have referred this matter to the Registrar.
DETERMINATION OF LEAVE TO APPEAL
Leave to appeal the decision of the Arbitrator is refused.
COSTS
The appeal has been unsuccessful and costs fall to be determined in accordance with section 345 of the Act. That section provides, relevantly, that:
345Costs penalties where appeal 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 the claimant and is unsuccessful on the appeal, the Commission must not make an order for the payment of the appellant’s costs on the appeal by any other party to the appeal, or
(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)If the appellant in any such appeal is a licensed insurer that maintains a statutory fund under the 1987 Act and is unsuccessful on the appeal:
(a) the insurer’s costs on the appeal, and
(b)the costs of any other party to the appeal that the insurer is ordered to pay,
are not to be paid out of the statutory fund.
(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.
The Parties are urged to come to an agreement as to costs in accordance with the above provisions.
Dr Gabriel Fleming
Deputy President
I certify that that this is a true and accurate record of the reasons for decision of Deputy President Dr Gabriel Fleming Workers Compensation Commission
Registrar Date:
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