Kula Systems Pty Ltd v Workers Compensation Nominal Insurer

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

CITATION:

Kula Systems Pty Ltd v Workers Compensation Nominal Insurer [2019] NSWWCCPD 68

APPELLANT:

Kula Systems Pty Ltd

RESPONDENT:

Workers Compensation Nominal Insurer

Appellant’s INSURER:

Uninsured

FILE NUMBER:

A3-6271/16

ARBITRATOR:

Mr J Wynyard

DATE OF ARBITRATOR’S DECISION:

5 April 2019

DATE OF APPEAL DECISION:

20 December 2019

SUBJECT MATTER OF DECISION:

Monetary threshold required by s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998; appeal solely in relation to costs – application of Grimson v Intergral Energy [2003] NSWWCCPD 29; monetary threshold not met

PRESIDENTIAL MEMBER:

Deputy President Elizabeth Wood

HEARING:

On the papers

REPRESENTATION:

Appellant:

Mr J Hallion, counsel

Novakovic Lawyers

Respondent:

Mr P Morris SC, counsel

Sparke Helmore Lawyers

ORDERS MADE ON APPEAL:

1.           The monetary threshold pursuant to s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 has not been met and there is no right to appeal.

INTRODUCTION

1.           This appeal is an appeal brought by Kula Systems Pty Ltd (the employer) against the same decision of the Arbitrator as the appeal brought by the Workers Compensation Nominal Insurer in appeal no A2-6271/16 – Workers Compensation Nominal Insurer v Kula Systems Pty Ltd.

2.           The facts and history relating the claim are summarised in the background to the matter as set out in the Nominal Insurer’s case and because of the narrow scope of this appeal, it is not necessary to repeat the entire history here. It is sufficient to note that the employer did not hold a workers compensation policy of insurance at the time a worker, Mr Aleksandar Ognjenovic was injured.

3. The Workers Compensation Nominal Insurer (the Nominal Insurer) served a notice on the employer pursuant to s 145(1) of the Workers Compensation Act 1987 (the 1987 Act) seeking reimbursement of work injury damages paid by the Nominal Insurer to the worker in accordance with a deed of release, which was signed by the worker, the Nominal Insurer and the employer.

4.           The employer applied to the Commission for a determination of its liability in accordance with s 145(3) of the 1987 Act in respect of the payment for which the Nominal Insurer sought reimbursement.

5.           Following a protracted history, the matter proceeded to arbitration. The employer sought a costs order against the Nominal Insurer.

6.           The Arbitrator issued a Certificate of Determination (COD) dated 9 April 2019, determining that the employer was not liable to reimburse the Nominal Insurer for the work injury damages paid to the worker. The Arbitrator did not include a costs order.

7.           The employer appeals from the failure by the Arbitrator to order costs in its favour.

ON THE PAPERS

8. 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…