El-Said v 3WJ Pty Limited - [2008] NSWWCCPD 50

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] NSWWCCPD 50
Decision Date: 14 May 2008

CaseChat Overview and Summary

The Workers Compensation Commission was presented with an appeal by Omar El-Said against a decision made by an arbitrator regarding a claim for compensation brought against 3WJ Pty Limited. The central dispute revolved around the legality of a costs order made in favour of 3WJ Pty Limited following El-Said's decision to discontinue his claim before the arbitrator rendered a decision. The appeal was assessed on the basis of whether the monetary threshold requirements set out in section 352 of the Workplace Injury Management and Workers Compensation Act 1998 were met, which necessitated the granting of leave to appeal.

The legal issue at the heart of the appeal was whether the Appellant had satisfied the statutory criteria outlined in section 352 of the 1998 Act, specifically the monetary threshold requirements, to be granted leave to appeal the arbitrator's decision on costs. The Appellant argued that the amount of compensation claimed, rather than the awarded costs, should be considered in determining whether the monetary threshold was met. Conversely, the Respondent maintained that the statutory language confined the right of appeal to disputes involving an "amount of compensation" that met the specified thresholds.

The Court examined the statutory language of section 352 and relevant case law, concluding that the appeal did not pertain to an "amount of compensation" but rather to the Arbitrator's order regarding costs. The Court held that the Appellant's submissions were misconceived and that the facts of the case did not satisfy the statutory threshold requirements for granting leave to appeal. Consequently, the appeal was dismissed as it did not meet the criteria outlined in section 352 of the 1998 Act. Additionally, no order was made regarding the costs of the appeal.

Orders