Hadchiti v New South Wales Police Force (No. 2)

[2009] NSWWCCPD 88

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Hadchiti v New South Wales Police Force (No. 2) [2009] NSWWCCPD 88
APPELLANT:		Bernadette Hadchiti
RESPONDENT:		New South Wales Police Force
INSURER:		Allianz Australia Insurance Limited as agent for the TMF No. 3
FILE NUMBER:		A1- 5845/08
ARBITRATOR:	Ms J Conley
DATE OF ARBITRATOR’S DECISION:		28 November 2008
DATE OF APPEAL DECISION:		29 July 2009
SUBJECT MATTER OF DECISION:		Leave to appeal; failure to make an order as to costs in favour of the worker; no “amount of compensation” at issue on the appeal; section 352 (2) of the Workplace Injury Managementand Workers Compensation Act 1998
PRESIDENTIAL MEMBER:		Acting Deputy President Anthony Candy
HEARING:		On the papers.
REPRESENTATION:		Appellant:		Carroll & O’Dea Lawyers
Respondent:		DLA Phillips Fox
ORDERS MADE ON APPEAL:		Leave to appeal is refused.  No order as to costs of the appeal.

BACKGROUND TO THE APPEAL

1. The relevant facts are set out in my decision in Hadchiti v New South Wales Police Force (No.1) [2009] NSWWCCPD 87 with which this decision should be read. It is not necessary to repeat them.

2. In short, in these proceedings, the Arbitrator having found in favour of the employer on the application brought by the worker in relation to the cessation of weekly payments pursuant to section 52A of the Workers Compensation Act 1987 (‘the 1987 Act’) did not consider it necessary to determine the alternative application brought by the employer for review of weekly payments pursuant to section 55 of the same Act.

ON THE PAPERS REVIEW

1. The parties have agreed that this matter may be determined “on the papers” and in my view that course is appropriate in the circumstances.

THE DECISION UNDER REVIEW

1. The ‘Certificate of Determination’, dated 28 November 2008 records the Arbitrator’s orders as follows:

   “The Commission determined:

   1.That the Application be dismissed pursuant to section 354(7A)(b) of the Workplace Injury Management Act [sic] and Workers Compensation Act 1998.

   2.No order as to costs.

   It is noted that the Statement of Reasons for this matter is found in the related application WCC5055-2008.”

ISSUES IN DISPUTE

1. The sole issue in this appeal is whether leave to appeal can be granted in respect of the Arbitrator’s failure to make a costs order in favour of the worker.

LEAVE TO APPEAL

1. The Application to Appeal was lodged within twenty-eight (28) days of the determination in question, however, it is less clear that the requirements of section 352(2) of the Workplace Injury Management and Workers CompensationAct 1998 are met. That sub-section provides:

   “352(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 $5,000.00 (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.”

   (emphasis added).

2. The submissions on behalf of the worker in relation to this threshold question are as follows:

   “…

   3.The amount of costs which the Respondent would be entitled to recover in the event of a favourable costs order would be calculated in accordance with the Worker’s Compensation Regulation 2003 Schedule 6 together with the disbursements incurred.

   4.Those costs would have exceeded $5000.00. Therefore the appeal meets the threshold requirements of S352 of the Workplace Injury Management Act.”

3. It is unnecessary, in my opinion, to consider whether this latter assertion can be sustained because the employer submits that no amount of compensation is at issue in this appeal and cites two authorities in support of this, namely El-Said v 3WJ Pty Limited [2008] NSWWCCPD 50 and RobertGrimson v Integral Energy [2003] NSWWCCPD 29. In El-Said, his Honour Judge Keating, followed the decision of Deputy President Fleming in Grimson which established that the making of an order as to costs did not concern an “amount of compensation”. Grimson has been followed in other cases which are referred to by his Honour. Paragraphs 23 and 30 of the Deputy President’s determination in Grimson, relied on by his Honour in El-Said are as follows:

   “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.”

   “The preferred interpretation, in my view, is that the Commission, constituted by a Presidential Member, may grant leave only to appeal against the 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”.

4. Despite the submissions made by the employer the worker has not sought to file supplementary submissions in response.  In my opinion the position is clear and the point raised by the employer is unanswerable. 

5. Accordingly, leave to appeal may not be granted and is therefore refused.

DECISION

1. Leave to appeal is refused. 

COSTS

1. No order as to costs of the appeal.

Anthony Candy

Acting Deputy President  

29 July 2009

I, MARIE JOHNS CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ANTHONY CANDY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE