Hien Huu Tran v AP Facilities Pty Limited t/as Atlab Australia
[2004] NSWWCCPD 3
•14 January 2004
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
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| CITATION: | Hien Huu Tran v AP Facilities Pty Limited t/as Atlab Australia [2004] NSW WCC PD 3 |
| APPELLANT: | Hien Huu Tran |
| RESPONDENT: | AP Facilities Pty Limited t/as Atlab Australia |
| INSURER: | QBE Workers Compensation (NSW) Ltd |
| FILE NO: | WCC7904-2003 |
| DATE OF ARBITRATOR’S DECISION: | 29 August 2003 |
| DATE OF APPEAL DECISION: | 14 January 2004 |
| SUBJECT MATTER OF DECISION: | Application for Leave to appeal against a decision relating only to costs, section 352(2) of the 1998 Act. |
| PRESIDENTIAL MEMBER: | President Justice Terry Sheahan |
| HEARING: | On the Papers |
| REPRESENTATION: | Appellant: Bryden’s Law Firm |
| Respondent: QBE In House Legal | |
| ORDERS MADE ON APPEAL: | Leave to appeal against the decision of the Arbitrator is refused. |
THE APPEAL
On 22 September 2003, Hien Huu Tran (‘the Appellant Worker) lodged an ‘Application for Appeal Against a Decision of an Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 29 August 2003. The Respondent has made no submissions in reply. The Appellant Worker made further submissions dated 24 September 2003.
The appeal concerns a decision by an Arbitrator in Commission proceedings, after she had set the matter aside under Rule 6(4) of the Workers Compensation Commission Rules 2003 (‘the 2003 Rules’), that there be no order made as to costs.
The Appellant Worker appears to seek orders that the Arbitrator’s decision be revoked and a new decision made that the Respondent Insurer pay some of the Appellant Worker’s costs in the proceedings.
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.
The Appellant Worker submitted that the matter is suitable to be dealt with “on the papers”. Having regard to President’s Practice Directions Numbers 1 and 6, the submissions that have been made by the Appellant Worker, and the documents that are before me, 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 of this matter.
JURISDICTION TO HEAR THE APPEAL
Before proceeding to hear the appeal the Commission must determine whether the application meets the requirements of section 352 of 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 Appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Whether the Appellant Worker can meet the threshold requirements of section 352(2) of the 1998 Act is at issue as the decision under review concerns only an order as to costs.
In the Application, the Appellant Worker stated that the amount of compensation at issue was $0.00.
The Appellant Worker in the submissions of 24 September stated: “In this matter, there is no amount of compensation at issue as the appeal is purely on the issue of a costs order made by the arbitrator…Section 352(2) is only applicable where there is an amount of compensation at issue…The existence of sections 353(1) and (4) [of the 1998 Act] acknowledges that the Presidential member may hear appeals relating to issues other than those circumstances presided by section 353(2).”
DISCUSSION AND FINDINGS
Section 352(2) of the 1998 Act provides that “[t]he Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal” is both at least $5,000 and more than 20% of the amount awarded in the decision appealed against. Section 353 of the 1998 Act clearly has no effect on the operation of section 352 of the 1998 Act and the threshold requirements of section 352 cannot be waived in these circumstances.
The decision to set aside the substantive proceedings before the Arbitrator is not at issue, and the appeal relates only to an issue of costs. Therefore, as the Appellant Worker admits, there is no dispute before the Commission about an “amount of compensation”. An order for costs does not concern an “amount of compensation” either in the appeal or in the original claim (Borg v Garnville Pty Limited [2003] NSW WCC PD 30, see also Grimson v Integral Energy [2003] NSW WCC PD 29, and Benson v Integral Energy [2003] NSW WCC PD 37).
Where a matter had been set aside and there is effectively no “amount of compensation” in dispute between the parties, the application of the threshold test for leave to appeal in section 352(2) of the 1998 Act is not met. Therefore, I do not have the jurisdiction to hear any appeal brought.
Even if I were wrong in the above interpretation, there is no evidence that the amount of costs at issue in this appeal is at least $5,000. Having regard to the applicable ‘Compensation Costs Table’ in Schedule 6 of the WorkersCompensation Regulation 2003, the maximum amount payable in costs in these proceedings, which did not reach a conciliation or arbitration hearing, is likely to fall below $5,000.
DETERMINATION OF LEAVE TO APPEAL
Leave to appeal the decision of the Arbitrator is refused.
COSTS
I make no order as to costs regarding this leave application.
Justice Terry Sheahan
President
I certify that that this is a true and accurate record of the reasons for decision of President Justice Terry Sheahan Workers Compensation Commission.
Registrar Date:
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