Integral Energy Australia v Penning
[2004] NSWWCCPD 66
•24 September 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Integral Energy Australia v Penning [2004] NSWWCCPD 66
APPELLANT: Integral Energy Australia
RESPONDENT: Dallas Penning
FILE NUMBER: WCC19214-03
DATE OF ARBITRATOR’S DECISION: 20 May 2004
DATE OF APPEAL DECISION: 24 September 2004
SUBJECT MATTER OF DECISION: Application for an Order for Costs where appeal is discontinued. Rule 74(4), Workers Compensation Commission Rules 2003.
PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Deputy President
HEARING:On the papers.
REPRESENTATION: Appellant: Turner Freeman, Solicitors
Respondent: Leigh Virtue and Associates, Solicitors
ORDERS MADE ON APPEAL: The Appellant is to pay the costs of the appeal.
On 15 June 2004, Integral Energy Australia filed an appeal against the decision of an Arbitrator, dated 20 May 2004. The Arbitrator had made an award of weekly compensation and medical expenses in favour of Mr Penning (‘the Respondent’).
On 9 July 2004 the Respondent filed written submissions in reply to the appeal.
On 11 July 2004 Integral Energy filed an ‘Election to Discontinue’ the appeal.
On 16 July 2004 the Respondent applied for an order for costs. The Respondent submits “considerable costs were incurred in obtaining the worker’s instructions, reviewing the Arbitrator’s award and the evidence from the arbitration proceedings, and preparation of the written submissions on appeal”.
The Appellant opposes an order for costs and submits that the parties were engaged in settlement discussions, which resulted in an agreement on 6 July 2004. This was prior to the filing of the Respondent’s reply to the appeal. The Appellant submits that the issue of costs should have been raised prior to the parties’ agreement and to the discontinuance. The Appellant refers in its submission, to correspondence between the parties evidencing the agreement to settle the proceedings, dated 1 July 2004 and 6 July 2004, however no copies of this correspondence were attached. I therefore have no evidence to support the Appellant’s claim that the Respondent consented to the filing of the discontinuance. This application for costs suggests that he did not, or at least that the issue of costs remained in dispute.
I am satisfied that the Respondent incurred costs as a result of the filing of the appeal. Given that the appeal was then discontinued I see no reason why the Appellant should not pay the Respondent’s costs. There is no evidence before me to substantiate the claim that the Respondent’s costs were unreasonably incurred and therefore should not be met.
The Appellant is correct to point out that the costs are governed by the Workers Compensation Regulation 2003, Schedule 6.
The Appellant is to pay the costs of the appeal.
Dr Gabriel Fleming
Deputy President
24 September 2004
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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