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.
THEAPPEAL
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…
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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AGLC
Grimson v Integral Energy [2003] NSWWCCPD 29
Case
[2003] NSWWCCPD 29
Decision Date
CaseChat Overview and Summary
The dispute in Grimson v Integral Energy involves the Respondent’s submission that leave to appeal cannot be granted due to non-compliance with subsection 352(2) of the 1998 Act. The Applicant seeks leave to appeal the decision of an Arbitrator, which the Respondent argues does not meet the threshold test under section 352 of the Act. The issue hinges on whether the appeal pertains to a decision involving compensation, specifically if the amount in dispute is at least $50,000, or if it involves costs only, which the Respondent contends should not be categorised as compensation and is below the required threshold of $50,000.
The court considered the broad definition of 'decision' in subsection 352(8) of the 1998 Act, which includes interim awards, rulings, and directions. The court examined previous decisions, such as Mawson v Fletchers International Exports Pty Limited, where it was determined that subsection 352(2)(b) does not preclude appeals against decisions that do not involve monetary awards. The court concluded that the purpose of subsection 2(b) applies a qualification that must be met before leave to appeal is granted against a decision in which an award is made, but this qualification does not apply to decisions where no award is involved.
Based on the reasoning, the court found that the Applicant’s appeal did not meet the threshold test under section 352 of the 1998 Act, as the decision in question did not involve compensation or an award. Therefore, the court refused the application for leave to appeal against the decision of the Arbitrator.
ORDERS:
The Application for leave to appeal against the decision of an Arbitrator is refused.
Orders
Orders of the court
The Application for leave to appeal against the decision of an Arbitrator is refused.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
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”. 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.