Deeks v Harmer Steel Erections

[2004] NSWWCCPD 48

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Seton v Rocla Industries Limited [2004] NSW WCC PD 48

APPELLANT:  Roderick Leslie Seton

RESPONDENT:  Rocla Industries Limited

INSURER:Rocla Limited

FILE NUMBER:  WCC 9479-2003 & 11203-2003

DATE OF ARBITRATOR’S DECISION:          7 May 2004

DATE OF APPEAL DECISION:  29 July 2004

SUBJECT MATTER OF DECISION:                Listing of the dispute for a conciliation/arbitration on 16 July 2004

PRESIDENTIAL MEMBER:  Deputy President Gary Byron

HEARING:On the papers.

REPRESENTATION:  Appellant:  Messenger & Messenger, Solicitors and Attorneys

Respondent:  Leigh Virtue and Associates, Solicitors

ORDERS MADE ON APPEAL:  Appeal not determined, and no substantive orders made.

Leave given to the parties to make submissions as to the costs of the appeal.

THE APPEAL

1. On 4 June 2004 Roderick Leslie Seton (‘the Appellant Worker’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 7 May 2004.

1. The Respondent to the Appeal is Rocla Industries Limited (‘the Respondent Employer’).

1. The appeal was referred to me for review on 29 July 2004.

THE DISPUTE

1. The Appellant Worker appeals against the decision of the Arbitrator to list the hearing of the conciliation/arbitration in this matter on 16 July 2004, as the Arbitrator gave no reasons for the decision to list the matter. The Appellant Worker states, “If the arbitrator does give reasons the appellant reserves his right to make further or additional submissions in the event that any reasons are given or advanced.”  The Appellant Worker asks that the decision be set aside and that the conciliation/arbitration be listed to take place following the determination of the appeal against the Medical Assessment Certificate.  Substantive submissions in support of the appeal are set out in the document attached to the ‘Application – Appeal Against Decision of Arbitrator’, on the Commission file. 

1. The Respondent Employer made submissions in reply on 23 June 2004 and, following an exchange of correspondence with the Registrar, further submissions were made by letter dated 6 July 2003.  The Respondent Employer opposes the appeal and the grounds of appeal, submits that leave should not be granted, and indicates that the vacating of the conciliation/arbitration hearing on 16 July 2004 by the Arbitrator, following the lodgement of the appeal, is invalid, on the basis that “Cancelling the conference/arbitration is, in effect, deciding and allowing the appeal and this is clearly something that the Arbitrator cannot do.”  All submissions made by the Respondent Employer are on the Commission file.

DISCUSSION

1. The matter was referred to me today, and as 16 July 2004 is now past, it seems to me that this appeal is otiose as it no longer serves any practical purpose.  In the circumstances, proceeding to a determination of any or all of the threshold issues, the jurisdictional issues and the substantive issues would be of no value, a pointless exercise and a waste of time.    

1. I note the correspondence that has passed between the Respondent Employer’s Solicitors and the Registrar, concerning aspects and implications of the appeal and the action taken to vacate the conciliation/arbitration.  However, as I cannot usefully take this particular appeal any further, I will not comment upon or address the issues raised in that correspondence.

DECISION

1. The appeal is otiose and I do not propose to proceed to a consideration and determination of the matter.   

COSTS

1. I leave it open to the parties to make submissions in due course, as to the costs of this appeal.

Gary Byron

Deputy President  

29 July 2004

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.

ASSOCIATE