El-Said v 3WJ Pty Limited
[2008] NSWWCCPD 50
•14 May 2008
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE
COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:El-Said v 3WJ Pty Limited [2008] NSWWCCPD 50
APPELLANT: Omar El-Said
RESPONDENT: 3WJ Pty Limited
INSURER:CGU Workers Compensation (NSW) Limited
FILE NUMBER: WCC9025-07
DATE OF ARBITRATOR’S DECISION: 13 February 2008
DATE OF APPEAL DECISION: 14 May 2008
SUBJECT MATTER OF DECISION: Leave to appeal cost order
PRESIDENTIAL MEMBER: President Judge Keating
HEARING:On the papers
REPRESENTATION: Appellant: Stephen Smart & Associates
Respondent: Sparke Helmore
ORDERS MADE ON APPEAL: Leave to appeal is refused.
No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 29 February 2008, Mr Omar El-Said (‘the Appellant /Worker’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 13 February 2008.
The Respondent to the Appeal is 3WJ Pty Limited (‘the Respondent/Employer’).
On 27 November 2007 Mr Al-Said filed an Application to Resolve a Dispute (‘the Application’) in the Commission seeking lump sum compensation pursuant to sections 66 and 67 of the Workers Compensation Act 1987 in respect of injury to his neck, back, left leg and urinary bladder control as a result of falling two metres onto cement on 16 March 2006.
The matter was listed for a conciliation arbitration hearing on 12 February 2008 before a Commission arbitrator. The parties were unable to resolve the dispute and the matter proceeded to hearing. The Worker gave oral evidence in response to questions from the Arbitrator, and was cross-examined by counsel for the Respondent. Both parties made oral submissions and at the conclusion of the hearing, counsel for the Worker sought and was granted a short adjournment to obtain instructions on some specific matters. Following the short adjournment, the Worker’s counsel informed the Arbitrator that the Worker’s instructions were to discontinue the proceedings. Counsel for the Respondent sought a costs order in favour of his client on the basis that the proceedings were brought without proper justification. Counsel for the Respondent submitted that the Worker had, within the last six months, brought earlier proceedings for the same injuries that were also discontinued. He had not remedied deficiencies in his case before commencing the current proceedings necessitating his decision, at the conclusion of the matter, and prior to the Arbitrator’s determination, to again discontinue the proceedings.
After hearing submissions from both parties on the Respondent’s application for costs, the Arbitrator delivered an ex tempore decision, granting leave to the Worker to discontinue the proceedings and making an order for costs against the Worker, in favour of the Employer for the payment of professional costs in the sum of $5,225.00. Mr El-Said seeks leave to appeal from that decision.
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 the 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.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 13 February 2008 records the Arbitrator’s orders as follows:
“The determination of the Commission in this matter is as follows:
1.That the Proceedings be discontinued.
2.That the requirement to file an Election to Discontinue be dispensed with.
3.That the Applicant pay the professional costs of the Respondent assessed at $5,225.00 plus GST
A sound recording of the reasons given is available to the parties.”
ISSUES IN DISPUTE
The issue in dispute in the appeal is whether leave to appeal can be granted in respect of the costs order made on 13 February 2008.
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.
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Section 352 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.
(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.
(8) In this section, decision includes an award, interim award, order, determination, ruling and direction.”
Section 352(2) provides that the Commission is not to grant leave to appeal “unless the amount of compensation at issue on the appeal is at least $5,000.00” (emphasis added).
The Appellant submits that the instant case satisfies section 352(2) of the 1998 Act and the principles as set out in Grimson v Intergral Energy [2003] NSWWCCPD 29. It is argued that given the fact that no amount of compensation was awarded by the Arbitrator, the monetary threshold is met by reference to the “amount of the claim as particularised by the Applicant”, being $77, 850.00. The Appellant also relied on the decision of Deputy President Roche in Mateus v Zodune Pty Limited t/as Tempo Cleaning Services [2007] NSWWCCPD 227 (‘Mateus’), a case in which the worker appealed a decision of an Arbitrator making an award in favour of the Respondent, and where the Deputy President in granting leave to appeal stated at [15]:
“Mr Mateus claimed $7,500.00 in his Application and the $5,000.00 threshold in section 352(2)(a) is satisfied. As no amount of compensation has been awarded the second limb of section 352(2) has no application (Mawson).”
The Appellant submits that such an interpretation gives the Commission power to review an Arbitrator’s decision in relation to costs. Further, if it is necessary for the amount of the costs awarded to exceed the $5000.00 threshold, the cost order of $5225.00 exceeds the $5000.00 requirement in section 352(2)(a).
In reply, the Respondent submits that section 352(1) limits the right of appeal to “a dispute” in connection with “a claim for compensation” and it is the amount of compensation at issue on the appeal that must reach the threshold in section 352(2).
Section 352 has been considered by the Commission in a number of cases including Borg v Garnville Pty Ltd [2003] NSW WCC PD 30, Benson v Integral Energy [2003] NSW WCC PD 37, Deeks v Harmer Steel Erections [2004] NSW WCC PD 48, Zeng v Inset Group Australia Pty Ltd [2004] NSW WCC PD 78, Sorbello v Yellamo Pty Ltd and ors [2006] NSWWCCPD 91 and Holmes v Rodney S & Susan Cooper [2006] NSWWCCPD 281, which have all followed the reasoning of Deputy President Fleming in Grimson v Integral Energy [2003] NSW WCC PD 29 who stated at [23]:
“The decision ‘no order as to costs’ clearly does not concern an ‘amount of compensation’, either in the appeal, or in the original claim. The costs associated with an application to the Commission are not themselves an amount of compensation under the Workers Compensation Acts. ‘Compensation’ is defined in section 4 of the 1998 Act as ‘compensation means compensation under the Workers Compensation Acts, and includes any monetary benefit under those Acts’. Chapter 4 of the 1998 Act deals with ‘Workers Compensation’. Part 3 of the 1987 Act deals with ‘Compensation-Benefits’. In the circumstances of this case there was no ‘amount of compensation at issue’ as the substantive proceedings had been discontinued.”
At paragraph [30] of Grimson, Deputy President Fleming added:
“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.”
The Appellant’s submissions are misconceived. The facts before me are clearly distinguishable from those in cases such as Mateus, in which no amount of compensation was awarded because the worker’s claim failed and an award was entered for the Respondent. The substance of the appeal concerned the amount of ‘compensation’ in issue in the sum of $7500.00 pursuant to section 66. The instant case is distinguished on the basis that the only issue on appeal is the Arbitrator’s determination with respect to costs.
Mr El-Said sought leave to discontinue his claim at the conclusion of the hearing but prior to the Arbitrator making any determination or award in relation to his claim for compensation. Because there was no award made by the Arbitrator determining the claim for compensation, no ‘compensation’ is at issue on the appeal, such as to satisfy the requirements in section 352(2).
The only order made by the Arbitrator, other than recording the discontinuance was an order awarding costs in favour of the Respondent under section 112 of the 1998 Act, after the Worker sought to discontinue the proceedings. The appeal does not relate to an ‘amount of compensation’ but relates to the Arbitrator’s order as to costs.
I am satisfied that the decisions referred to above are correct and an appeal in relation to a costs order does not meet the threshold requirements in section 352(2) and therefore leave to appeal is refused. Having made this order it is unnecessary to consider the Appellant’s grounds of appeal.
DECISION
Leave to appeal is refused.
COSTS
No order as to costs of the appeal.
His Hon. Judge Greg Keating
President
14 May 2008
I, MELANIE CURTIN CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF HIS HON. JUDGE GREG KEATNG, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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