Holmes v Rodney S & Susan Cooper - [2006] NSWWCCPD 281

WORKERS COMPENSATION COMMISSION

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

CITATION:Holmes v Rodney S & Susan Cooper [2006] NSWWCCPD 281
APPELLANT:  Shane Holmes
RESPONDENT:  Rodney S & Susan Cooper
INSURER:CGU Workers Compensation (NSW) Limited
FILE NUMBER:  WCC13646-05
DATE OF ARBITRATOR’S DECISION:          14 February 2006
DATE OF APPEAL DECISION:  24 October 2006
SUBJECT MATTER OF DECISION:                Leave to appeal costs order
PRESIDENTIAL MEMBER:  Acting Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION:  Appellant:      Bale Boshev Lawyers
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 6 March 2006 Shane Holmes (‘the Appellant Worker/Mr Holmes’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 14 February 2006.

The Respondent to the Appeal is Rodney S & Susan Cooper (‘the Respondent Employer’).

In previous proceedings in the Commission (WCC16908-03) consent orders were made on 19 March 2004 in favour of the Appellant Worker requiring the Respondent Employer to pay weekly compensation in the following amounts:

(a)$320.00 per week from 16 February 2003 to 17 August 2003;

(b)$310.90 per week from 18 August 2003 to 30 September 2003, and

(c)$317.20 per week from 1 October 2003 to date and continuing in accordance with the provisions of the Workers Compensation Act 1987 (‘the 1987 Act’)

Without first obtaining an order of the Commission to vary or amend the above orders, the Respondent Employer quite improperly and wrongly ceased payments to the Appellant Worker on 7 June 2005.

On 15 August 2005 an Application to Resolve a Dispute (‘the Application’) was filed by Mr Holmes seeking an order for weekly payments from 7 June 2005 to date. In fact Mr Holmes sought the resumption of his payments pursuant to the orders made on 19 March 2004.

The Application was listed for conciliation and arbitration before a Commission Arbitrator on 22 November 2005 when the Respondent Employer sought, for the first time, to amend its Reply to seek to make an application for a review of the orders of 19 March 2004. Submissions were heard from both sides and in a reserved decision dated 1 February 2006 the Arbitrator refused that application and dismissed the Appellant Worker’s Application on the grounds that she had no power to make an order enforcing the orders previously made. A Certificate of Determination was issued to that effect. The parties were given liberty to apply in respect of costs.

On 9 February 2006 a teleconference was conducted when the parties made submissions on costs. A further Certificate of Determination was issued on 14 February 2006 refusing the Appellant Worker application for costs. Mr Holmes seeks leave to appeal from that decision.

PRELIMINARY MATTERS

Section 354(6) of 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…

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: [2006] NSWWCCPD 281
Decision Date: 24 October 2006

CaseChat Overview and Summary

In Holmes v Rodney S & Susan Cooper, the Appellant, Shane Holmes, sought leave to appeal against a decision of the Workers Compensation Commission, which was constituted by an arbitrator. The dispute arose from a cessation of weekly compensation payments by the Respondent Employer, Rodney S & Susan Cooper, despite existing consent orders mandating the payments. The Appellant filed an application to resolve a dispute, seeking the resumption of payments. The Arbitrator dismissed the application, finding no authority to enforce the previous orders, and subsequently denied the Appellant's application for costs. Holmes appealed the denial of the costs order, seeking leave to challenge the decision.

The primary legal issue before the Commission was whether leave to appeal the Arbitrator's decision on costs should be granted. The appeal hinged on the interpretation of section 352 of the Workers Compensation Act 1998, which stipulates that leave to appeal may only be granted if the amount of compensation at issue is at least $5,000. Given that the appeal did not concern an 'amount of compensation' but rather the absence of a costs order, the Court considered relevant precedents. These cases established that the Commission could only grant leave to appeal if there was a monetary award at issue, either as a minimum of $5,000 or at least 20% of the award. As the present case did not involve an award of compensation, the Court held that the Appellant's application for leave to appeal the costs order was without merit.

The Acting Deputy President Bill Roche concluded that the decisions in prior cases, which held that leave to appeal could not be granted for a costs order, were correctly decided and applicable. Therefore, the Commission refused leave to appeal, and no order was made regarding the costs of the appeal. This decision underscored the importance of adhering to statutory requirements and the established jurisprudence in determining the admissibility of appeals within the Workers Compensation Commission.

Orders