Crompton v Moree Plains Shire Council

[2005] NSWWCCPD 3

WORKERS COMPENSATION COMMISSION

APPLICATION FOR COSTS OF

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Crompton v Moree Plains Shire Council [2005] NSW WCC PD 3

APPELLANT:  William Crompton

RESPONDENT:  Moree Plains Shire Council

INSURER:Insurers Guarantee Fund-NEM General Insurance Association Ltd (in Liquidation)

FILE NUMBER:  WCC805-2002

DATE OF APPEAL DECISION:  13 March 2003

DATE OF THIS DECISION:  4 February 2005

SUBJECT MATTER OF DECISION:                Application for Costs of the Appeal

PRESIDENTIAL MEMBER:  Dr Gabriel Fleming

HEARING:On the papers.

REPRESENTATION:  Appellant:     R. King

Respondent:   Edwards Michael Lawyers

ORDERS MADE ON APPEAL:  No order as to costs of the appeal.

THE APPEAL

1. This is an application on behalf of Moree Plains Shire Council for the costs of an appeal against a decision of an Arbitrator.  Leave to appeal was refused on 13 March 2003, however the matter was referred back to the Arbitrator for reconsideration.  The Arbitrator then amended his order in favour of Mr Crompton. 

1. The Council now seeks an order for costs of the appeal in its favour.  In response Mr Crompton also seeks an order for costs or, alternatively, an order that no order for costs against him.

1. Both parties have made written submissions on the relevant issues and I have taken these into account.  I am satisfied that I have sufficient information to proceed to determine costs ‘on the papers’ and that this is the appropriate course in the circumstances. 

1. The award of costs of an appeal is governed by Division 3 of Part 8 of the Workplace Injury Management and Workers Compensation Act 1998.

1. In this matter Mr Crompton was not successful on the appeal (section 345(3)).  However this is not to say that the issues in the appeal were not genuine and material to him.  The appeal was not ‘frivolous or vexatious, fraudulent or made without proper justification’ (section 341(4)).  Ultimately the appeal resulted in an amendment of the Arbitrator’s orders in Mr Crompton’s favour. 

1. In my view the fair and reasonable result should be that each party pay their own costs.

DECISION

1. No order as to costs of the appeal.

Dr Gabriel Fleming

Deputy President  

4 February 2005

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.

ASSOCIATE