Daley v Elsglen Pty Ltd t/as Lake Hume Resort
[2004] NSWWCCPD 24
•3 May 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Daley v Elsglen Pty Ltd t/as Lake Hume Resort [2004] NSWWCCPD 24
APPELLANT: Dyanne Daley
RESPONDENT: Elsglen Pty Ltd t/as Lake Hume Resort
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER: WCC16427-03
DATE OF ARBITRATOR’S DECISION: 27 January 2004
DATE OF APPEAL DECISION: 3 May 2004
DATE OF RECONSIDERATION DECISION: 3 August 2005
SUBJECT MATTER OF DECISION: Arbitrator’s decision to admit Later Reply and Medical Report; Referral to AMS
PRESIDENTIAL MEMBER: Dr Gabriel Fleming
HEARING:On the papers.
REPRESENTATION: Appellant: Adams Leyland Solicitors
Respondent: QBE Workers Compensation (NSW) Limited
ORDERS MADE ON APPEAL: The decision of the Arbitrator is confirmed.
The Appellant is to pay the costs of the Appeal.
THE APPEAL
On 5 February 2004 Dyanne Daley (‘the Appellant Worker’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 27 January 2004.
The Respondent to the Appeal is Elsglen Pty Ltd t/as Lake Hume Resort (‘the Respondent Employer’). The relevant insurer is QBE Workers Compensation (NSW) Limited.
The appeal was referred to me for review on 30 April 2004.
The original application in this matter is for referral to an Approved Medical Specialist (‘AMS’) for an assessment of permanent impairment, as a threshold issue prior to the making of a claim for work injury damages (pursuant to section 313 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The issue in dispute is whether or not the Arbitrator erred in granting leave to the Respondent to file a late Reply, and attached medical report. The latter would, if admitted, form part of the documents referred to the AMS.
JURISDICTION
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
In this matter I am satisfied that:
·The appeal is filed within 28 days of the decision appealed against (section 352(4) of the 1998 Act),
·The amount of compensation at issue on the appeal is at least $5,000 (section 352(2)(a) of the 1998 Act),
·No amount was awarded in the decision appealed against and therefore section 352(2)(b) of the 1998 Act has no application (Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5), and
·No new evidence is submitted in the appeal (section 352(6) of the 1998 Act).
Leave to appeal is granted.
ON THE PAPERS REVIEW
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.
10. The parties consent to determination of the matter on the papers.
11. 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.
DISCUSSION AND FINDINGS
12. The principles that guide the discretion as to whether to grant leave to allow the filing of a late Reply in the Commission are set out in ADCO Constructions Pty Ltdv Ferguson [2003] NSW WCC PD 21. Guidance is also found in Commission Practice Direction No. 9. Ultimately it will be a matter for the Arbitrator to determine according to the interests of fairness and justice to the parties. It is a matter for determination according to the circumstances of each case.
13. In this matter the Arbitrator expressly considered the potential prejudice to the Appellant in allowing the filing of the Reply, and found that there was none. While it would have been preferable for the Arbitrator to have briefly set out the other matters that were relevant to the decision, it is evident from the evidence and submissions in the file before me that; there is a history of proceedings before the Compensation Court involving these same parties and the issues in dispute are therefore well known; the worker is in ongoing receipt of compensation and not disadvantaged, in that sense, by the delay; the timeliness of the proceedings in the Commission is not delayed because the matter must be referred to an AMS. The Respondent submits that ‘administrative oversight’ was the reason why the Reply was filed late.
14. In my view the Arbitrator has not erred in exercising his discretion to allow the filing of a late Reply by the Respondent.
15. All medical reports relied upon by the parties may be referred to the AMS, regardless of whether they have been admitted in the proceedings (Fletchers International Exports Pty Limited v Regan [2004] NSW WCC PD 7). It is therefore of no advantage to the Appellant to oppose the filing of the Reply on the basis of excluding the attached medical report from referral to the AMS.
16. The matter should now be sent to the Registrar for prompt referral to an AMS.
DECISION
17. The decision of the Arbitrator is confirmed.
18. The Appellant is to pay the costs of the appeal.
Dr Gabriel Fleming
Deputy President
3 May 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.
ASSOCIATE
WORKERS COMPENSATION COMMISSION
RECONSIDERATION OF A DECISION OF THE COMMISSION CONSTITUTED BY A PRESIDENTIAL MEMBER
CITATION:Daley v Elsglen Pty Ltd t/as Lake Hume Resort [2005] NSWWCCPD 24R
APPLICANT: Dyanne Daley
RESPONDENT: Elsglen Pty Ltd t/as Lake Hume Resort
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER: WCC16427-03
DATE OF ARBITRATOR’S DECISION: 27 Jan 2004
DATE OF APPEAL DECISION: 3 May 2004
DATE OF RECONSIDERATION DECISION: 3 August 2005
SUBJECT MATTER OF DECISION: Reconsideration of Order as to Costs of an Appeal; Appellant Unsuccessful, section 345 of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Deputy President
HEARING:On the papers
REPRESENTATION: Appellant: Adams Leyland Solicitors
Respondent: QBE Workers Compensation
(NSW) Limited
ORDERS MADE ON APPEAL: The decision that ‘The Appellant is to pay the costs of the Appeal’, dated 3 May 2004, is revoked and the following decision is made in its place:
No Order as to Costs.
RECONSIDERATION OF COSTS ORDER
On 3 May 2004 I issued a determination in the appeal filed by Ms Daley against her employer Elsglen Pty Ltd t/as Lake Hume Resort. Elsglen was represented in the proceedings by QBE Workers Compensation (NSW) Limited. The appeal decision confirmed the order made by a Commission Arbitrator granting leave to Elsglen to file a late reply and attached medical reports in proceedings before him. I also made an order that Ms Daley pay the costs of the appeal. It is this latter order, in relation to costs, which Ms Daley now seeks to have reconsidered.
Ms Daley’s solicitor wrote to the Commission on 17 June 2004 in relation to the order for costs made on 3 May 2004. This letter was treated as an application for reconsideration pursuant to Section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). This section provides that the “Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission.”
On 12 August 2004 QBE were provided with a copy of the letter of 17 June 2004, advised that the matter would be reconsidered and given until 26 August 2004 to provide any submissions in relation to the matters raised. I am advised by the Commission’s registry that no submissions have been received to date.
I am satisfied that I have sufficient information to proceed with this matter ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
Ms Daley was unsuccessful in her appeal. Section 345(3) of the 1998 Act therefore prevents me from making an order for the payment of her costs by another party. However I am satisfied that the order as to costs should be reconsidered. There is nothing before me to indicate that Ms Daley’s claim was “frivolous or vexatious, fraudulent or made without proper justification” (section 341(4) of the 1998 Act). Therefore a costs order should not be made against her. The appropriate order is ‘No order as to Costs’.
DECISION
The decision that ‘The Appellant is to pay the costs of the Appeal’, dated 3 May 2004, is revoked and the following decision is made in its place:
No Order as to Costs.
Dr Gabriel Fleming
Deputy President
3 August 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
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