Dundullimal Holdings Pty Ltd t/as Western Parcel Express v CGU Workers Compensation (NSW) Ltd
[2008] NSWWCCPD 88
•20 August 2008
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | Dundullimal Holdings Pty Ltd t/as Western Parcel Express v CGU Workers Compensation (NSW) Ltd & Anor [2008] NSWWCCPD 88 | ||||
| APPELLANT: | Dundullimal Holdings Pty Limited t/as Western Parcel Express | ||||
| RESPONDENT: | CGU Workers Compensation (NSW) Limited | ||||
| THIRD PARTY: | Mark Minett | ||||
| INSURER: | CGU Workers Compensation (NSW) Limited | ||||
| FILE NUMBER: | WCC9069-07 | ||||
| DATE OF ARBITRATOR’S DECISION: | 15 April 2008 | ||||
| DATE OF APPEAL DECISION: | 20 August 2008 | ||||
| SUBJECT MATTER OF DECISION: | Leave to appeal – no amount claimed as compensation; jurisdiction of the Commission; sections 287, 288 and 289 of the Workplace Injury Management and WorkersCompensation Act 1998; joinder of a party. | ||||
| PRESIDENTIAL MEMBER: | Acting Deputy President Deborah Moore | ||||
| HEARING: | On the papers | ||||
| REPRESENTATION: | Appellant: | Leigh Virtue & Associates | |||
| Respondent: | Bartier Perry | ||||
| Third Party: | Adams Leyland Solicitors | ||||
| ORDERS MADE ON APPEAL: | Leave to appeal is refused. The Appellant Employer is to pay the Respondent Insurer’s and the Worker’s costs of the appeal. | ||||
BACKGROUND TO THE APPEAL
On 12 May 2008 Dundullimal Holdings Pty Limited t/as Western Parcel Express (‘the Appellant/the Employer’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 15 April 2008.
The Respondent to the Appeal is CGU Workers Compensation (NSW) Limited (‘the Respondent/the Insurer’).
The Third Party to the proceedings (wrongly described by the parties as the ‘Second Respondent’) is Mark Minett (‘the Worker’).
The Worker commenced employment with the Employer on or about 23 August 2004 as a truck driver. He claimed he injured his left hip and back in an incident at work on 9 March 2005. He lodged a claim form with the Employer on 24 March 2005.
Liability was accepted for the injuries and treatment by the Insurer.
On 11 October 2006, the Employer filed proceedings in the Commission, WCC16012-06. The Employer claimed that it brought the action pursuant to section 287 of the Workplace Injury Management andWorkers CompensationAct 1998 (the 1998 Act), notwithstanding the Insurer’s response that it had accepted liability and that there were no outstanding issues between it and the Worker. Those proceedings were the subject of a conciliation/arbitration hearing on 8 February 2007(wrongly noted on the transcript of that date as “8 February 2006”).
On 20 February 2007 a ‘Certificate of Determination’ was issued. The Arbitrator dismissed the application pursuant to section 354(7A)(b) of the 1998 Act, and ordered the Employer to pay costs.
The Employer appealed. On 9 August 2007 Acting Deputy President Snell refused leave to appeal essentially on the basis that the appeal failed to comply with section 352(2) of the 1998 Act. (See Dundullimal Holdings t/as Western Parcel Express v Minett [2007] NSWWCCPD175] (Dundullimal (1)).
The Employer appealed to the Court of Appeal on 4 September 2007. The holding appeal was extended on a number of occasions but ultimately expired on 17 June 2008.
Meanwhile, in December 2006, the Worker brought proceedings in the Commission, matter number WCC18126-06, seeking payment of outstanding benefits. The parties were named as the Employer and the Worker. Those proceedings were settled on the basis that the Employer agreed to make voluntary payments of compensation. The proceedings were accordingly discontinued. A ‘Certificate of Determination’ dated 8 March 2007 reflected those orders, and included a notation as to agreed amounts of weekly benefits to be paid to the Worker.
The Worker also made a claim for lump sum compensation for permanent impairment. The parties executed a Complying Agreement in respect of that claim such that all claims made by the Worker for his injuries were resolved.
On 27 November 2007, the Employer filed an ‘Application to Resolve a Dispute’ in the Commission, the subject of this current appeal. The Respondent to those proceedings was named as the Insurer. The Employer alleged that “Matters in Dispute” involved weekly benefits, medical expenses and lump sum compensation “where liability in dispute”. The Employer essentially disputed the Insurer’s decision to pay compensation to the Worker, and brought these proceedings seeking an order to the effect that the Worker did not receive a compensable injury on 9 March 2005.
The Worker then filed an application to be joined as a party to the proceedings. That interlocutory application was heard and determined by an Arbitrator who on 13 March 2008 issued a ‘Certificate of Determination’ ordering, inter alia, “That Mark Minett be joined as a Third Party to these proceedings.”
The substantive claim was listed for a conciliation/ arbitration hearing on 26 March 2008.
The Arbitrator noted the Employer’s concession that the ‘Application to Resolve a Dispute’ in the Commission was not an application for compensation and entered an award in favour of the Respondent Insurer. The Employer was ordered to pay all parties costs as agreed or assessed.
It is from this decision that the Employer seeks leave to appeal.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’ dated 15 April 2008 records the Arbitrator’s orders as follows:
“1. An award for the Respondent.
2.That the Applicant pay the Respondent’s costs as agreed or assessed and that that there be a 10% uplift on those costs.
3. That the Applicant pay the Worker’s costs as agreed or assessed and that there be a 10% uplift on those costs.”
A ‘Statement of Reasons ‘ accompanied the Arbitrators determination.
ISSUES IN DISPUTE
The Employer has identified four grounds of appeal as follows:
“1. The Arbitrator erred in joining the Worker as a party to these proceedings.
2. The Arbitrator erred in her consideration and interpretation of the operation of sections 287 and 288 of the WIM [sic]
3. The Arbitrator erred in failing to give adequate reasons.
4. The Arbitrator made consequential errors in regard to the question of costs.”
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.”
The Employer submits that the matter should be given an oral hearing since it involves “a number of matters which have not, so far as the Appellant is aware, been the subject of prior determination involving in particular the right of an employer to have a dispute determined by the Commission”.
The Employer submits that this is “an important matter which would benefit from the parties being given an oral hearing…”
Both the Insurer and the Worker submit that the matter is suitable for a determination ‘on the papers’.
A transcript of the proceedings before the Arbitrator was sent to all parties on 27 May 2008, and no further submissions have been raised.
While the Insurer concedes that “these proceedings raise issues concerning the jurisdiction of the [Commission] to determine matters raised as disputes by employers and in particular the interpretation of Part 4 of the 1998 Act…” it also accepts that this “of itself is not sufficient reason for there to be a hearing.”
I am of the same view as the Insurer. My task is to determine if I have “sufficient information” to determine the matter on the material before me. As the Insurer points out, “all of the issues are fully canvassed in the material filed to date by the parties, the transcript…and the decision of the arbitrator.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties, 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
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
Time.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Monetary Threshold
Section 352 of the 1998 Act, as amended by the Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005 (‘the amending Act’), provides:
“352 Appeal 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.
(1A) An appeal is to be made by application to the Registrar. The appeal is not to proceed unless the Registrar is satisfied that the requirements of this section and any applicable Rules and regulations as to the making of the appeal have been complied with.
(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. Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.
(7A) Section 345 of the Legal Profession Act 2004 applies to and in respect of the provision of legal services in connection with an appeal to the Commission under this section in the same way as it applies to and in respect of the provision of legal
services in connection with a claim or defence of a claim for damages referred to in that section.Note: Section 345 of the Legal Profession Act 2004 prohibits a law practice from providing legal services in connection with a claim or defence unless a legal practitioner associate responsible for the provision of those services believes, on the basis of provable facts and a reasonably arguable view of the law, that the claim or defence has reasonable prospects of success.
(8) In this section, ‘decision’ includes an award, interim award, order, determination, ruling and direction, but does not include any award, order, determination, ruling or direction of an interlocutory nature prescribed by the regulations.” (Emphasis added)
Before leave to appeal can be granted it is necessary that “the amount of compensation at issue on the appeal” is both “at least $5,000.00” and “at least 20% of the amount awarded in the decision appealed against”. In Grimson v Integral Energy [2003] NSWWCCPD 29 Deputy President Fleming said:
“30. The preferred interpretation, in my view, is that the Commission, constituted by a Presidential Member, may grant leave only to appeal against a decision of an Arbitrator where there is an amount of compensation at issue on the appeal that is (a) at least $5,000, and, if a monetary award has been made, (b) at least 20% of that award. The ‘. . . amount of compensation at issue on the appeal’ is determined by reference to the amount of any monetary award made by the Arbitrator or, where no monetary award is made, the amount of the claim as particularized by the Applicant.”
No compensation has been awarded in this matter. Moreover, as the Insurer rightly points out, the Worker’s claim had at no time been disputed by it.
Both the Insurer and the Worker submit that the threshold in section 352(2) has not been met.
The Employer makes the following submission: “ The dispute in this matter is one between the employer and its insurer. It is not disputed that the compensation paid to the worker following the claim substantially exceeds $5,000.00. In this regard, the Appellant relies on the decision in Mawson v Fletcher International Exports Pty Limited [2002] NSWWCCPD 5 (Mawson). In particular the Appellant says that as this appeal relates to a dispute in connection with a claim for compensation (specifically as to the injury forming the basis for the claim) the amount of compensation relevantly in issue on the appeal satisfies the threshold requirements of section 352(2) of the WIM [sic]”.
In Mawson Deputy President Byron said [22]:
“No amount was awarded in the decision appealed against. An award was not an appropriate outcome given that the dispute before the Arbitrator was entirely related to applications for directions and not to the merits or other aspects of the substantive claim made by Mr. Mawson, and which is in dispute before the Commission, but not yet dealt with. While a reference to the Second Reading Speech was not helpful on the particular point, a “meaningful result” is not achieved by merely ignoring the provisions of subsection (8) of section 352. It seems that “20%” in subsection (2)(b) is limited to a decision in which an award is made and that the operation of this subsection does not preclude appeals against decisions in which no award was made. The purpose of subsection 2(b) in my view, applies a qualification or condition that must be met before leave to appeal is granted against a decision in which an award is made, but that particular qualification or condition does not and cannot meaningfully apply to a decision where this is not the case.”
While it is now well established that section 352(2)(b) does not of itself preclude appeals in which no award was made, the difficulty with the Employer’s reasoning in this case is that, in attempting to as it were ‘modify’ the reasoning in Mawson to fit the circumstances of this case, it ignores two important matters; firstly, Mr Mawson was claiming a significant amount of compensation, and secondly; the wording in section 352(2) is clear and unambiguous that “The Commission is not to grant leave to appeal (my emphasis) unless the amount of compensation at issue(my emphasis) is …”
This provision seems mandatory: there must be a dispute as to the amount of compensation before leave can be granted.
In the present case, no such dispute exists, the Employer having acknowledged that the dispute related to a finding of ‘injury’ and conceded, as the Arbitrator noted at paragraph 10, “the Application to Resolve a Dispute before the Commission was not an application for compensation.”
Although the Employer’s Application purported to claim weekly benefits compensation at the rate of $500 per week from “17/03/2005 to date & continuing” in reality no such claim existed, the Insurer (and indeed the Employer) conceding that all benefits had been paid to the Worker.
This was precisely the issue considered by Acting Deputy President Snell in Dundullimal (1). In that case, the Employer brought proceedings against the Worker. The Application again claimed weekly benefits from 17 March 2005 at the rate of $500 per week (clearly ignoring the notations on the Certificate of Determination dated 8 March 2007 as to weekly amounts agreed between the parties to December 2006). As Deputy President Snell said [paragraphs 24 to 28]:
“24. The ARD purported to claim a weekly sum of $500.00, from 17 March 2005 to date and continuing. Clearly this could not represent a sum the Appellant Employer claimed to be entitled to recover from the Respondent Worker. There would be no conceivable statutory basis for such a claim. Rather, the pleading purported to represent a notional claim by the Respondent Worker. However the Respondent Worker himself made no such claim in the Commission. It is clear, from the pleadings and submissions, the matter proceeded on the basis the Respondent Worker had been paid all benefits to which he claimed to be entitled. The ARD represented a device employed by the Appellant Employer to attempt to get the matter before the Commission for decision, notwithstanding the Appellant Employer’s insurer had not disputed liability. It could have no other function. The material attached to the ARD was not material which, if accepted, would tend to establish an entitlement on the Respondent Worker’s part to compensation. Rather, such material consisted predominantly of statements of witnesses, which may tend to cast doubt on whether the incident of 9 March 2005 occurred as alleged, and if it did, whether there may be other causes for the Respondent Worker’s back condition. Whilst the ARD purported to represent an application for compensation, in reality it was an attempt by the Appellant Employer, to obtain a finding adverse to the position of the Respondent Worker, notwithstanding CGU had not disputed the claim.
25. The compensation claimed in the ARD did not represent an entitlement the Respondent Worker sought to have awarded to him in these proceedings. In reality, there was no amount of compensation at issue in the proceedings, as the Respondent Worker accepted he had been paid his entitlements. If the proceedings had been dealt with by the Arbitrator, and there had been findings favourable to the Respondent Worker, there would have been no sum to award. It was accepted the relevant benefits had already been paid. The Respondent Worker had no outstanding claim. 26. As the Appellant Employer has submitted on this appeal, in a different context, strict pleadings are not required in the Commission: Far West Area Health Service v Radford[2003] NSWWCCPD 10. However principles of procedural fairness must be observed: South Western Sydney Area Health Service v Edmonds[2007] NSWCA 16 (‘Edmonds’) at [88]. Section 354(1) of the 1998 Act provides proceedings should be conducted with as little formality and technicality as the proper consideration of the matter permits. Section 354(3) requires the Commission to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. It is consistent with such provisions that I look to the reality of the ARD lodged in the matter, in determining whether there was any amount of compensation at issue in the proceedings. There was not.
27. It has been held that, where no amount of compensation is at issue in an appeal, the appeal does not meet the threshold test in section 352(2): Sullivan v Illawarra Newspapers Holdings Pty Ltd[2006] NSWWCCPD 135; Hunter Area Health Service v Gilbey[2006] NSWWCCPD 136. In my view, this situation prevails in the current appeal. I accept the submission put on behalf of the Respondent Worker, that there were no amounts of compensation outstanding, which could meet the threshold in section 352(2) of the 1998 Act.
28. It follows that leave to appeal cannot be granted, as the appeal does not satisfy section 352(2).”
In the present case, the reality is that there is no amount of compensation at issue in the proceedings such that leave to appeal must be refused.
DISCUSSION AND FINDINGS
If I am wrong in my interpretation of section 352(2) of the 1998 Act, I do not consider that there was merit in the appeal in any event. In those circumstances, it is appropriate that I give reasons for my views.
The Employer’s complaint that the Arbitrator erred in permitting the Worker to be joined to the proceedings (and the consequential costs orders) is without foundation.
The Arbitrator’s determination on this issue dated 13 March 2008 is clearly of an interlocutory nature and thus not subject to appeal in line with the provisions of section 352(8) of the 1998 Act (see Khanafer v Anabelle BitsPtyLtd [2008] NSWWCCPD 84). As the Insurer rightly points out, referring to P&O PortsLimited v Hawkins [2007] NSWWCCPD 87 the joinder of the Worker to the proceedings was not a matter that ‘finally disposed’ of the parties’ rights and was a matter “genuinely preliminary, provisional or interim in nature.”
Even if this were not the case, I would consider that principles of procedural fairness would validate the Arbitrator’s decision on this issue since there was no doubt that the Employer’s relentless pursuit of it’s aim to revoke the Insurer’s decision on ’injury’ such as to disentitle the Worker to any benefits clearly had the potential, as the Insurer noted, “to compromise the credit of the Worker”. This was acknowledged by the Arbitrator in the Statement of Reasons dated 13 March 2008, when she stated (paragraph 13): “…the issues involved in the dispute are such that the Arbitrator in this matter could make a decision adverse to his rights.”
In those same reasons, the Arbitrator noted that: “In the prior proceedings [WCC16012-06] there was no determination of the substantive dispute on its merits. The matter was dismissed because the proceedings were misconceived because the Arbitrator found that the Worker should not have been the Respondent to the proceedings. This was affirmed on appeal to the Deputy President. I therefore accept that it is not appropriate to join the Worker as a Respondent to these proceedings.”
Having dismissed the Employer’s appeal on this issue, it follows that the Arbitrator’s determination as to costs was also appropriate. This would have been the case in any event since costs associated with an application to the Commission are not “compensation”. (See Benson v Integral Energy [2003] NSWWCCPD 37)
I turn now to the main thrust of the Employer’s submissions: did the Arbitrator err in her consideration of the operation of sections 287 and 288 of the 1998 Act?
Section 287(1) of the 1998 Act provides:
287 Disputes to which Part applies
(1) This Part applies to a dispute in connection with a claim for compensation between:
(a) the person who makes the claim and a person on whom the claim is made, or
(b) the employer on whom the claim is made and the insurer on whom the claim is made.”
Section 288 provides:
“288 Referral of disputes to Commission
(1) Any party to a dispute about a claim may refer the dispute to the Registrar for determination by the Commission. However, if the dispute is about lump sum compensation, only the claimant can refer the dispute.
Note. A medical dispute concerning the claim can also be referred for assessment under Part 7 (Medical assessment).(2) The Registrar may not accept a dispute for referral for determination to the Commission if the dispute is a dispute that, under this Part, cannot be referred for determination by the Commission.”
Section 289 relevantly provides:
“289 Restrictions as to when dispute can be referred to Commission
(1) A dispute about a claim for weekly payments cannot be referred for determination by the Commission unless the person on whom the claim is made:
(a) disputes liability for the claim (wholly or in part), or
(b) fails to determine the claim as and when required by this Act.Note. The determination of a claim requires the commencement of weekly payments of compensation. The failure to commence weekly payments without having disputed liability constitutes a failure to determine the claim.
...
(5) The Commission may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination by the Commission.”
Just as Acting Deputy President Snell determined in Dundullimal (1) the Application lodged in this matter, also asserting that weekly benefits compensation was in issue, did not demonstrate that a dispute existed “…susceptible to being referred for determination by the Commission.” Again, just as in Dundullimal(1) the Worker had made a claim on the Employer. The Employer, consistent with its statutory obligations, forwarded the claim to the Insurer. The Insurer, consistent with it’s entitlement to act in the name of the Employer and pursuant to the statutory policy, accepted liability and made payments of compensation in satisfaction of the Employer’s primary liability under section 9 of the 1987 Act.
I agree with the conclusions reached by Acting Deputy President Snell in Dundullimal(1) where he said as follows [44]:
“Section 289 would, in my view, have been fatal to the continuation of the proceedings in any event. Even if this were not so, there was no issue between the Appellant Employer and CGU, which could have been determined at the arbitration hearing. The ARD sought no orders as between the Appellant Employer and CGU. The only parties nominated in the ARD were the Appellant Employer (described as the ‘Applicant’), and the Respondent Worker (described as ‘the Respondent’). CGU was not a party, nor was it present. It had taken the stance (of which it advised the parties prior to 20 February 2007) it did not need to attend, as it raised no issue regarding injury or liability generally. The Arbitrator could not, consistent with principles of natural justice, have made orders adversely affecting the position of CGU, at the arbitration hearing.”
In the present case of course, the proceedings are between the Employer and the Insurer. Perhaps this was an attempt by the Employer to overcome the difficulties with it’s Application as described by Acting Deputy President Snell, however, in my view it does not: section 289 is fatal to the Employer’s Application. The Insurer never disputed liability as required by section 289(1)(a), nor indeed had the Insurer failed to determine the claim as required by section 289(1)(b).
The Arbitrator made reference to these sections in her Statement of Reasons before concluding as follows:
“ 28. Part 4 of the 1998 Act deals with ’claims’ for ‘compensation’ in the Commission. It was argued [by the Employer] that sections 287 and 288 can be read to mean that a dispute between an Insurer and an Employer about a claim can be determined by the Commission. In addition it was claimed that the restrictions imposed upon the Commission hearing disputes should not apply because this is not a claim about compensation. In the alternate, it was submitted that this is the type of matter where leave ought be granted to allow the dispute to be heard.
29. Such an interpretation of these provisions takes these two sections completely out of their legislative context. I find that section 287 must be construed to mean that the Commission has jurisdiction to hear and determine disputes ‘in connection with a claim for compensation.’ That is, these words must be construed to mean that there must be a claim seeking an order in respect of the payment of compensation before the Commission some aspect of which is in dispute.
30. I do not accept the Applicant’s submission that section 287 can be read in isolation as a stand alone provision enabling disputes to be heard as between an Employer and an Insurer, if there is no dispute in respect of the payment of compensation to a Worker.”
The Arbitrator then considered factors which she regarded as lending support to her findings in particular, the statutory policy contained in Form 3 of Schedule 1 to the Workers Compensation Regulation 2003. Clause 3 makes an insurer liable, inter alia, for “compensation that the Employer becomes liable to pay under the Act to or in respect of any person who is a worker of the Employer”. Clause 5 makes the insurer directly to a worker. Clause 6 provides:” The Insurer is bound by and subject to any judgment, order, decision or award given or made against the Employer, in respect of any liability for which the Insurer is liable to indemnify the Employer under this Policy.”
Relevantly, Clause 11 provides:
“11 Defence of proceedings
The Insurer can use the name of the Employer in respect of anything indemnified under this Policy, including the bringing, defending, enforcing or settling of legal proceedings for the benefit of the Insurer. The Employer must comply with all reasonable requests by the Insurer for information, assistance and documents to enable the Insurer to settle or resist a claim.”
Clause 24 provides:
“24 Act and regulations form part of Policy
This Policy is subject to the provisions of the Act and the regulations under the Act and those provisions are taken to form part of this Policy.”
These provisions were also the subject of discussion by Acting Deputy President Snell in Dundullimal (1). He concluded [33]: “Clearly the insurer, CGU, was entitled to act, using the name of the Appellant Employer, in dealing with the Respondent Worker’s claim for compensation, that being a matter indemnified under the policy.”
That view was shared by the Arbitrator who said [34]:
“The legislative intent is clear. The Insurer has the statutory authority to stand in the shoes of the Employer to bring, defend and settle proceedings in respect of claims under the Act. The Employer’s rights are subrogated in the Insurer. The Insurer having conceded liability …arising from an injury on 9 March 2005 the Employer cannot now seek to litigate the issue in the Commission.”
The Arbitrator concluded that the Commission did not have jurisdiction to determine the Employer’s application.
I concur with the findings of both the Arbitrator and Acting Deputy President Snell.
As to the Employer’s complaint that the Arbitrator failed to give adequate reasons for her decision, given my findings on other issues it is not necessary to deal with this to any great extent. Were it crucial to the appeal, I would nonetheless find that the Arbitrator’s reasons were well considered and more than adequate in the context of her statutory duty.
CONCLUSION
The Employer has gone to considerable effort to as it were ‘undo’ the decision of the Insurer. The merits of that endeavour are not for me to determine: what is clear is that the Commission is not the appropriate forum for such a dispute.
The Commission does not have jurisdiction to hear and determine such an application. As Acting Deputy President Snell concluded in Dundullimal (1)[47]:
“If leave to appeal had been granted, the conclusion I would have reached is one that the Commission did not have jurisdiction in the matter. In circumstances where Commission proceedings have been found to be instituted without jurisdiction, due to failure by a worker to make a claim, orders have been made that the proceedings are a nullity, and should be struck out. An appropriate order, adapted from that made by Roche ADP in Cottons Glass & Aluminium Pty Limited v Handsaker[2006] NSWWCCPD 205, would be in the following terms:
‘The proceedings commenced by the Appellant Employer in this matter were commenced in breach of the provisions of the 1998 Act, and as a result are a nullity, as the Commission does not have jurisdiction to hear and determine the matter. The proceedings are struck out’”.
DECISION
Leave to appeal is refused.
COSTS
The Appellant Employer is to pay the Respondent Insurer’s and the Workers cost of the appeal.
Deborah Moore
Acting Deputy President
20 August 2008
I MARIE JOHNS, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DEBORAH MOORE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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