Holmes v Rodney S & Susan Cooper
[2006] NSWWCCPD 281
•24 October 2006
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 Act without holding any conference or formal hearing.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, 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.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’, dated 14 February 2006, records the Arbitrator’s orders as follows:
“1.That there be no order as to costs.”
ISSUE IN DISPUTE
The issue in dispute in the appeal is whether leave to appeal should be granted in respect of the costs order made on 14 February 2006.
LEAVE TO APPEAL
The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 the 1998 Act. That section provides:
“352 Appeal 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. Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.
(8) In this section, decision includes an award, interim award, order, determination, ruling and direction.”
The key provision is section 352(2) which provides that the Commission is not to grant leave to appeal “unless the amount of compensation at issue on the appeal is” at least $5,000.00. The present appeal does not relate to an ‘amount of compensation’ but relates to the fact that the Arbitrator made no order as to costs.
Section 352 has been considered by the Commission in several cases. In Grimson v Integral Energy [2003] NSW WCC PD 29 Deputy President Fleming stated at [23]
“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.”
At paragraph [30] of Grimson Deputy President Fleming added:
“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.”
The same result was reached in Borg v Garnville Pty Ltd [2003] NSW WCC PD 30, Benson v Integral Energy [2003] NSW WCC PD 37, Deeks v Harmer Steel Erections [2004] NSW WCC PD 48, Zeng v Inset Group Australia Pty Ltd [2004] NSW WCC PD 78 and Sorbello v Yellamo Pty Ltd and ors [2006] NSWWCCPD 91.
In the present case there was no award dealing with the claim for compensation and, as a result, no ‘compensation’ is at issue on the appeal. No submissions have been made suggesting that the above authorities are wrong and should not be applied in the matter before me. The Commission is a statutory body and its powers are derived from the relevant legislation. I believe the decisions referred to above are correct and their application to the matter before me leads to only one conclusion, leave to appeal must be and is refused.
DECISION
Leave to appeal is refused.
COSTS
No order as to costs of the appeal.
Bill Roche
Acting Deputy President
24 October 2006
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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