De Salvo v ISS Facility Services Australia Limited (formerly Tempo Services Ltd)
[2007] NSWWCCPD 133
•5 June 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION
CONSTITUTED BY AN ARBITRATOR
CITATION:De Salvo v ISS Facility Services Australia Limited (formerly Tempo Services Ltd) [2007] NSWWCCPD 133
APPELLANT: Anna De Salvo
RESPONDENT: ISS Facility Services Australia Limited (formerly Tempo Services Ltd)
INSURER:Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER: WCC15501-06
DATE OF ARBITRATOR’S DECISION: 26 February 2007
DATE OF APPEAL DECISION: 5 June 2007
SUBJECT MATTER OF DECISION: Leave to appeal; award of costs by Arbitrator upon proceedings being discontinued.
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION: Appellant: Keddies
Respondent: TurksLegal
ORDERS MADE ON APPEAL: Leave to appeal is refused.
No order is made as to the costs of this appeal.
BACKGROUND
On 26 March 2007 Ms Anna De Salvo, the Appellant Worker sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission, against a decision, dated 26 February 2007. An earlier appeal was lodged on 7 March 2007, but was rejected by the Registrar. That is not relevant for the purposes of this appeal.
The Respondent to the Appeal is ISS Facility Services Australia Limited (formerly Tempo Services Ltd), (‘ISS’).
The Insurer is Allianz Australia Workers Compensation (NSW) Limited.
A telephone conference was held before an Arbitrator on 23 February 2007. The Arbitrator’s ‘Certificate of Determination – Consent Orders’ dated 26 February 2007 records the following:
“In this matter a telephone conference was held where the parties came to an agreed resolution of the issues in dispute. By reason of their agreement, and in accordance with Rule 15.9[1] of the Workers Compensation Commission Rules 2006, the determination of the Commission is as follows:
1. By consent the proceedings are discontinued.
2.By consent I dispense with the requirement that a Notice of Discontinuance be filed.
3. Each party is to pay its own costs.”
THE DECISION UNDER REVIEW
The appeal filed by Ms De Salvo’s legal representatives is made against the Arbitrator’s decision that “each party is to pay its own costs”.
Ms De Salvo requests that the decision of the Arbitrator in this regard be revoked and that she be awarded costs of the proceedings.
ISSUES IN DISPUTE
The substantive issue in dispute in the appeal is confined to the order made by the Arbitrator as to costs, upon discontinuance of the proceedings. However, related issues of “denial of natural justice”, “public policy”, and “prejudice to the Appellant Worker’s solicitors” are raised. No specific error of fact, law or discretion on the part of the Arbitrator is specifically articulated, although the submissions in support of the appeal briefly canvass the power and discretion of the Commission to award costs.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘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.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by both 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 TO APPEAL
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
ISS submits that the appeal was not made within the time prescribed by section 352(4) of the 1998 Act. It submits:
“1.The respondent accepts that the appeal was lodged within 28 days of the certificate of determination being issued, but says it was lodged more that [sic] 28 days from the date of the teleconference when the arbitrator informed the parties of her decision. The teleconference was conducted on 23 February 2007.
2.Although the application for leave to appeal was signed on 23 March 2007, the date stamp on the application for leave to appeal indicates a date of lodgement of 26 March 2007. Clause 1.4(2) of the Workers Compensation Rules 2006 states that ‘a document is registered for the purposes of these rules when it has been lodged and accepted by the Registrar’. Prima facie, the document was lodged on 26 March 2007 and accepted by the Registrar on 27 March 2007 when the directions regarding the appeal were made.
3. Section 352(4) of the 1998 Act provides that:
‘An appeal can only be made within 28 days after the making of the decision appealed against.’
Section 352(4) does not provide for time to be calculated form [sic] the date of issue of the certificate of determination.”
The ‘Appeal Against Decision of Arbitrator’ was filed and registered in the Commission on 26 March 2007. Appeals are normally accepted or rejected upon receipt in the Commission. The appeal in this matter was not rejected. While the next document progressing the matter and issued by the Registrar is dated 27 March 2007, there is no indication or evidence to suggest that the appeal was not accepted in the normal course of events on the date that it was received in the Commission. I do not accept ISS’s submission on that issue.
.
While section 352(4) does not itself provide that time for making an appeal is to be calculated from the date of issue of the certificate of determination, Rule 16.2(2) of the Workers Compensation Commission Rules 2006 (‘the Rules’) provides that for the purposes of making an appeal, “a decision is made, in respect of a dispute, when the Commission issues a certificate as to the determination of the dispute as required by section 294(1) of the 1998 Act.” Consequently, the time for making an appeal is properly calculated from the date of the issue of the ‘Certificate of Determination’, and that is the case in this appeal.
I find that the appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Section 352(2) of the 1998 Act provides:
“(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.”
Before proceeding to deal with the application of this section to the relevant facts and circumstances of this matter, it is necessary to correct a statement made in paragraph 2.10 of Ms De Salvo’s submissions on appeal, dated 23 March 2007. It is there stated, “ … the current matter was discontinued upon the direction of the Arbitrator as the matter had been determined by way of a Medical Assessment Certificate.” It is further stated in the last sentence of that paragraph, “Accordingly, upon the direction of the Arbitrator, the decision that was made was to discontinue the matter as no amount of compensation was payable to the Applicant.”
These statements are incorrect. No such “direction” was issued. While it is clear that discussion took place and suggestions were apparently made, the proceedings were ultimately discontinued by consent, as reflected in the Arbitrator’s orders. The decision to adopt this course was made by and between the parties. Accordingly, the Arbitrator made the order to discontinue by consent.
There is no “amount of compensation at issue” on appeal in this matter. The disputed claim for payment of workers compensation was discontinued. The only issue that remains is the claim for $4,070 for costs.
The decision in Mawson v Fletchers International Exports Pty Limited [2002] NSWWCCPD 5, put forward by the Appellant Worker, is not helpful in the absence of an amount of compensation at issue of at least $5000. Similarly, Robert Grimson v Integral Energy [2003] NSWWCCPD 29 does not assist. The Deputy President’s statement in that matter, at [23] is true of the instant case, that is, that the costs order made “clearly does not concern an ‘amount of compensation’ either in the appeal or in the original claim.” Moreover, she observed the costs associated with an application to the Commission are not themselves, an “amount of compensation” under the Workers Compensation Acts. The Deputy President went on to say at [29]:
“That is not to say that the decision of an Arbitrator in relation to the costs of proceedings before them cannot be the subject of review by a Presidential Member. Once the threshold test in subsection 352(2) is met, and other matters such as the time for filing of the appeal are addressed (352(4)), the whole of the decision of the Arbitrator is then properly the subject of review.”
Similarly, Stephen Albert Ingram v Norco Co-operative Limited [2003] NSWWCCPD 1 is unhelpful to the Appellant Worker. In that matter, the amount of compensation at issue was uncertain, but both parties agreed that it was $5600, notwithstanding that ultimately that may not have been the outcome. The fact remains that in that case, unlike the instant case, there was an amount of compensation at issue.
The Appellant Worker’s submission that “it is possible to determine the amount at issue by reference to the amount of the claim particularized in the application lodged in the Commission’s proceedings” does not hold in the instant case. The proceedings were discontinued by reason of the consent of the parties. There was no dispute to be determined. There was as a matter of plain fact, no amount of compensation at issue.
The Appellant Worker also relies upon Stevan Mlinar v Goninan & Co Limited t/as Maintrain [2003] NSWWCCPD 39. Again, this is unhelpful to the Appellant Worker. In that matter the Deputy President said at [19] and [20]:
“19.An order for costs does not concern an amount of compensation either in the appeal or in the original claim (Benson v Integral Energy [2003] NSWWCCPD 37, Grimson v Integral Energy [2003] NSWWCCPD 29, Borg v Garnville Pty Limited [2003] NSWWCCPD 30). In the circumstances where the appeal relates only to an issue of costs, there is no dispute before the Commission about an amount of compensation between the parties.
20.When there is effectively no amount of compensation in dispute between the parties, the application of the threshold requirements in subsection 352(2) of the 1998 Act is not met. Therefore, I do not have jurisdiction to hear the appeal.”
In the circumstances, there being no amount of compensation at issue in this matter, there is no basis upon which leave to appeal may be granted.
DECISION
Leave to appeal is refused.
COSTS
No order is made as to the costs of this appeal.
Gary Byron
Deputy President
5 June 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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