Grimson v Integral Energy

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
__________________________________________________________________

CITATION:	Robert Grimson v Integral Energy [2003] NSWWCCPD 29
APPELLANT:	Robert Grimson
RESPONDENT:	Integral Energy
INSURER:	Integral Energy
FILE NO:	WCC 571-2002
DATE OF ARBITRATOR’S DECISION:	2 June 2003
PRESIDENTIAL MEMBER:	Deputy President Dr Gabriel Fleming
DATE OF APPEAL DECISION:	3 November 2003
SUBJECT MATTER OF THE DECISION:	Application for Leave to Appeal against a decision relating only to costs, threshold issues, subsection 352 (2) of the 1998 Act.
HEARING:	On the Papers
REPRESENTATION:	Appellant: White Barnes Solicitors
Respondent: Leigh Virtue & Associates, Solicitors
ORDERS MADE ON APPEAL:	The Application for leave to appeal against the decision of an Arbitrator is refused.

THE APPEAL

On 30 June 2003, Robert Grimson, (‘the Appellant’), lodged an ‘Application for Appeal Against a Decision of an Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 2 June 2003. The Respondent to the appeal is the employer, Integral Energy (‘the Respondent’), which is also the Insurer (‘the Insurer’).
The employer was the Applicant in the original proceedings before the Arbitrator, the worker being the Respondent. The proceedings were discontinued by the employer following two telephone conferences and two conciliation/arbitration hearings. The worker then made an application for costs.
The Arbitrator’s decision is set out in the Certificate of Determination issued by the Commission on 2 June 2003 as: ‘No order as to costs’.
A brief statement of reasons accompanied the Certificate of Determination and, relevantly, states that:
. . . There is no issue that the Applicant has unfettered power to elect to discontinue proceedings in the Commission. . . . I find that the Commission has power to decide an issue as to costs as I had reserved that decision before the Applicant discontinued the proceedings. I find that the Applicant had a proper justification to bring its claim, and that there is no reason, on its conduct in this case, to seek to make an order for costs against it after it elected to discontinue its Application. Accordingly, I do not propose to award costs against the Applicant. It is also clear that the s 4 definitions of ‘claim’ and ‘claimant’ do not apply to an employer Applicant in s341(4) WIMA.
The Appellant filed written submissions on 25 July 2003. The matter was referred to me for review on 20 October 2003.

THE ISSUES IN DISPUTE

The issues in dispute in this appeal may be summarised as follows:
(i)Does the appeal meet the threshold requirements of subsection 352(2) of the Workplace Injury Management and Workers Compensation Act 1998?
If so,
(ii)Did the Arbitrator have the power to make an award of costs where the proceedings had been discontinued?
(iii)Did the Arbitrator make an error of law or discretion in not making an order awarding costs to the Respondent Worker?

ON THE PAPERS REVIEW

Subsection 354(6) of the Act provides:
354 Procedure before Commission
(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.
I am satisfied that I have sufficient information to determine the application for leave to appeal “on the papers” without holding any conference or formal hearing, and that this is the appropriate course in the circumstances of this matter.

JURISDICTION AND THRESHOLD ISSUES

Before proceeding to hear the appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), as follows:
352Appeal 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.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.
The Arbitrator’s decision was made on 2 June 2003 and the Certificate of Determination was issued on the same day. The appeal was lodged on the 28^th day after 2 June 2003. In accordance with section 36 of the Interpretation Act 1987, the date of the decision is not counted in this calculation. The appeal is therefore within time, in compliance with subsection 352(4) of the 1998 Act.
A further threshold issue arises, pursuant to subsection 352(2)(a) and (b), as to whether an order concerning costs is a ‘decision’ that can properly be said to come within the threshold monetary limits.
The Appellant submits that the ‘decision’ of the Arbitrator is appellable on the basis that: it comes within the definition of that term in subsection 352(8), no amount of compensation is at issue in the dispute therefore subsection 352(2) does not apply, and “. . .section 352(1) must include a decision as to costs only and as distinct from an amount of compensation as, if it did not, you would never be able to arrive at section 353(4)(b)”. The Appellant submits that “. . . costs were a dispute in connection with a claim for compensation and therefore can be appealed against in accordance with section 352(1)”.
Section 353 provides as follows:
353Appeal against decision of Commission constituted by Presidential member
(1)If a party to any proceedings before the Commission constituted by a Presidential member is aggrieved by a decision of the Presidential member in point of law, the party may appeal to the Court of Appeal.
(2)The Court of Appeal may, on the hearing of any appeal under this section, remit the matter to the Commission constituted by a Presidential member for determination by the Commission in accordance with any decision of the Court and may make such other order in relation to the appeal as the Court thinks fit.
(3)A decision of the Court of Appeal on an appeal under this section is binding on the Commission and on all the parties to the proceedings in respect of which the appeal was made.
(4)The following appeals under this section may be made only with leave of the Court of Appeal:
(a)     an appeal from an interlocutory decision,
(b)     an appeal from a decision as to costs only,
(c)an appeal where the amount of compensation in dispute is less than $20,000 (or such other amount as may be prescribed by the regulations),
(d)     an appeal from a decision made with the consent of the parties.
(5)   In this section, decision includes an award, interim award, order, determination, ruling, opinion and direction.
The Respondent submits that leave to appeal cannot be granted because the requirements of subsection 352(2) are not met, in that “. . . firstly that there is no compensation at issue in the appeal and secondly that even if costs could be categorised as compensation (and it is submitted that it cannot) the amount at issue is not at least $5000.00 so that leave should not be granted”. The Respondent submits that, in any event, the Arbitrator’s decision is “. . . correct in all respects”.

DISCUSSION AND FINDINGS

There is no dispute in this matter that a valid ‘decision’ has been made that may ground an application for leave to appeal in accordance with subsection 352(1) of the 1998 Act (WorkCover Authority v Riordan [2003] NSW WCC PD 13, Inghams Enterprises Pty Limited v Zarb [2003] NSW WCC PD 15). The first issue for determination is therefore whether the threshold test in section 352 is met.
The meaning of subsection 352(2) of the 1998 Act has been considered in a number of appeal decisions in the Commission. There is, generally, a need to reconcile this section with the broad definition of ‘decision’ in subsection 352(8), which encompasses interim awards, rulings and directions. Consistent with this definition it is possible to appeal against an interlocutory decision, involving no monetary ‘award’.
In Mawson v Fletchers International Exports Pty Limited [2002] NSW WCC PD 5 (‘Mawson’), the application of subsection 352(2)(b) to an Arbitrator’s decision, which did not involve the making of a monetary award was considered. Deputy President Byron concluded as follows:
. . . 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.
Subection 352(2) has two limbs that must be satisfied. Subection 352(2)(a) 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. Not all ‘decisions’ made by a Commission Arbitrator will be able to meet this statutory requirement. In Mawson the ‘decision’ under appeal was the refusal to issue a ‘Direction to Produce Documents’. The Deputy President accepted the argument that such a decision had the potential to affect the Applicant’s ability to fully present his case and therefore affect the substantive issues, namely the whole of the compensation at issue in the appeal. In ADCO Constructions Pty Ltd v Ferguson [2003] NSW WCC PD 21 this reasoning was found to be equally applicable to a decision refusing to allow a Respondent to file a ‘Reply to an Application to Resolve a Dispute’ (‘a Reply’). The failure to lodge a Reply clearly impacts on the employer’s ability to respond to the worker’s claim.
The amount of compensation at issue on the appeal must be determined by reference to the amount of compensation at issue in the proceedings before the Arbitrator at first instance. In Ingram v Norco Co-operative Limited [2003] NSW WCC PD1, the argument that leave to appeal must be refused where a dispute concerns a claim for lump sum compensation for permanent impairment and the ‘amount in issue’ has not been determined by reference to a report of an Approved Medical Specialist was rejected. In circumstances where the Arbitrator’s decision did not involve the making of a monetary award, but was nonetheless a ‘decision’ as defined in subsection 352(8) of the 1998 Act, it was 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.
Applying the same principle, leave was refused in Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSW WCC PD 3 where the Applicant sought, on appeal, to make a claim for $6,000 compensation for permanent impairment. This part of the claim was not referred to Registrar for determination by the Commission pursuant to section 288 of the 1998 Act, and consequently was not before the Arbitrator. The amount of this ‘new’ claim was thus not an ‘amount in issue in the appeal’ and the thresholds in subsection 352(2) were not met.
In Tagg v International Flavours and Fragrances (Australia) Ltd [2003] NSW WCC PD 5 the Appellant sought review by a Presidential Member, of a decision by an Arbitrator to adjourn a telephone conference. Leave to appeal was denied for the following reasons:
. . . The Commission is not a court and the limits of its powers are set out in the Workplace Injury Management and Workers Compensation Act 1998. . . . . The application of section 352(2) is a matter of interpretation in its statutory context. It might be said that an onus is imposed on the Commission to keep a ‘tight rein’ on matters that impact on its practice and procedure in order that it may meet the statutory objectives contained in section 367 of the Act. It was clearly not the intention of the legislature that all decisions of Arbitrators be amenable to appeal to a Presidential Member.
Section 352 refers to the ‘amount of compensation at issue on the appeal’. This ‘amount’ may be different from the amount of compensation at issue in the dispute as a whole. A party may, for example, have received an award that results in partial success in relation to the amount of the original claim. In my view an appeal against a decision to grant an adjournment of a telephone conference does not concern the amount of compensation at issue in the dispute, nor in the appeal. There is no evidence that the grant of the adjournment in this matter put in issue the amount of the Appellant’s claim, affected the ability to pursue the amount claimed in the Commission or caused the Appellant a substantial injustice. The granting of an adjournment in this case was purely procedural and does not meet the threshold test in section 352(2)(a). The Appellant will have a full opportunity to conduct its case before the Commission at a later date. The right of appeal in relation to the Arbitrator’s decision on the substantive issues remains.
The ‘amount of compensation at issue on the appeal’ is also not “. . . at large, depending upon the totality of a claim that may or may not ever be made, or indeed met” (WorkCover Authority v Riordan [2003] NSW WCC PD 13).
Mr Grimson’s application for leave to appeal raises further, and related issues in relation to the interpretation of subsection 352(2) of the 1998 Act. 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. This itself raises a question as to the power to award costs which, given the conclusion I have reached on the leave issue, is not a matter that need be finally decided in this appeal. Nor is the order ‘purely procedural’ as it has substantive consequences for the rights and responsibilities of the parties.
The Respondent’s submission in relation to subsection 353(4) of the 1998 Act may be briefly dealt with. Section 353 concerns appeals against decisions of a Presidential Member of the Commission, to the Court of Appeal. When a Presidential Member reviews a decision under section 352, or the President provides an opinion on a question of law under section 351, he or she also has the power to make interlocutory decisions and decisions as to costs. In relation to the ‘costs’ of an appeal to a Presidential Member the orders for costs that may be made are limited by section 345 (see Emeli Taeiloa v Forstaff Personnel [2003] NSW WCC PD 8-C for a discussion of this power). Subsection 353(4)(b) refers to an order for costs made by the Presidential Member on the appeal, not to an order made by an Arbitrator at first instance. Subsection 353(4) has no application to the order of the Arbitrator at first instance and does not expand upon the matters that must be met before leave to appeal may be granted pursuant to section 352.
It is clear from the above discussion that subsection 352(2)(b) of the 1998 Act has no application where a ‘decision’ does not involve an actual monetary award of compensation. However subsection 352(2)(a) must still be satisfied, with the amount of compensation at issue on the appeal being relative to the Arbitrator’s order, or the amount specified in the referral of the dispute to the Registrar for determination by the Commission.
Where a matter has been discontinued, and there is effectively no dispute before the Commission about compensation between the parties, its application is more problematic. To interpret subsection 352(2) as having application only to decisions that concern an amount of compensation results in the unintended consequence of allowing review of all decisions where no compensation is in issue on the appeal, yet restricting review where less than $5,000 and 20% of the award is in issue. It is difficult to conceive of other circumstances where no amount of compensation would be in issue in an appeal, other than the circumstances of this case, namely where the substantive matter is discontinued and an order for costs is made.
Granting leave to appeal an Arbitrators’ decision, regardless of whether it concerns an “amount of compensation”, by reference to that decision or the worker’s claim, is inconsistent with the plain words of the section. It is a general principle of statutory construction that all words in a statute are significant and should be given meaning and effect (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355).
An approach that gives little or no meaning to subsection 352(2) is also inconsistent with the clear intention of the legislature, and the purpose of the specific provision (section 352), namely to restrict the right of appeal from a decision of an Arbitrator to a Presidential Member (section 33 of the Interpretation Act 1987 provides that regard must be had to the purpose of an Act when interpreting its provisions).
This 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.
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.
For these reasons the application for leave to appeal the decision should be refused. It is therefore unnecessary to address the remaining two issues identified in the appeal.

DETERMINATION OF LEAVE TO APPEAL

Leave to appeal the decision of the Arbitrator is refused.

COSTS

The appeal has been unsuccessful and costs fall to be determined in accordance with section 345 of the 1998 Act. That section provides, relevantly, that:
345Costs Penalties Where Appeal Unsuccessful
(1)On an appeal from the Commission constituted by an Arbitrator to the Commission constituted by a Presidential member:
(a)If the appellant is the claimant and is unsuccessful on the appeal, the Commission must not make an order for the payment of the appellant’s costs on the appeal by any other party to the appeal, or
(b)If the appellant is an insurer (other than a licensed insurer that maintains a statutory fund under the 1987 Act) and is unsuccessful on the appeal the Commission may order the insurer to pay to the Authority for payment into the WorkCover Authority Fund an administration fee of $1000 or such other amount, as may be prescribed by the Regulations.
(2)If the appellant in any such appeal is a licensed insurer that maintains a statutory fund under the 1987 Act and is unsuccessful on the appeal:
(a) the insurer’s costs on the appeal, and
(b)the costs of any other party to the appeal that the insurer is ordered to pay,
are not to be paid out of the statutory fund.
(3)If an appeal concerns lump sum compensation, weekly payments of compensation or medical expenses compensation, the appellant is considered to be unsuccessful on the appeal unless the decision on appeal results in a change in favour of the appellant in the amount awarded or ordered to be paid in the decision appealed against of at least $5,000 (or such other amount as may be prescribed by the regulations) and at least 20% of the amount awarded or ordered to be paid.
(4)An administration fee that an insurer is ordered to pay is recoverable as a debt due to the Authority.
(5)The Registrar is to notify the Authority of an order to an insurer under this section to pay an administration fee.
The parties are urged to come to an agreement as to costs in accordance wiith the above provisions.

Dr Gabriel Fleming
Deputy President

I certify that that this is a true and accurate record of the reasons for decision of Deputy President Dr Gabriel Fleming, Workers Compensation Commission

Registrar

Date:

[2003] NSWWCCPD 29

3 November 2003