Mayne Group Limited v Unicomb

[2007] NSWWCCPD 131

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Mayne Group Limited v Unicomb [2007] NSWWCCPD 131

APPELLANT:  Mayne Group Limited

RESPONDENT:  Marilyn Unicomb

FILE NUMBER:  WCC564-06

DATE OF ARBITRATOR’S DECISION:          20 October 2006

DATE OF APPEAL DECISION:  4 June 2007

SUBJECT MATTER OF DECISION: Application for an Order for Costs where appeal is discontinued. Rule 15.7 Workers Compensation Commission Rules 2006

PRESIDENTIAL MEMBER:  Deputy President Gary Byron

HEARING:On the papers

REPRESENTATION:  Appellant:      Leigh Virtue & Associates,

Solicitors

Respondent:    Maurice Blackburn Cashman

Lawyers

ORDERS MADE ON APPEAL:  The Appellant is to pay the costs of the appeal as agreed or assessed.

BACKGROUND

1. On 31 October 2006, the Appellant, Mayne Group Limited (‘Mayne Group’) filed an ‘Appeal Against decision of Arbitrator’, dated 20 October 2006.  The Arbitrator had made an award in the decision appealed against, that Mayne Group was to pay to Ms Marilyn Unicomb, the Respondent Worker in the appeal, costs as agreed or assessed.

1. On 15 December 2006 a ‘Notice of Opposition’ was filed in the Workers Compensation Commission by Ms Unicomb.

1. On 19 December 2006 Mayne Group filed an ‘Election to Discontinue’ the appeal in this matter and in the related matter WCC8708-06. 

1. Ms Unicomb wrote to the Commission on 22 December 2006 referring to the Discontinuances filed and made an application for costs up until the filing of the Discontinuances in both matters in accordance with Rule 15.7 of the Workers Compensation Commission Rules 2006 (‘the Rules’).

1. On 12 February 2007 a teleconference was held in the related matter WCC8708-06 and on 15 February 2007 the following orders were issued by the Arbitrator, along with short reasons for the decision:

“1. The Applicant employer is to pay the Respondent employee’s costs associated with the discontinuance of the appeal by the Applicant employer in this matter as agreed or assessed.

2. The Applicant employer is to pay the Respondent employee’s costs of this telephone conference as agreed or assessed.”

1. On 9 March 2007 Ms Unicomb wrote to the Commission in relation to WCC564-06 stating:

“We have been informed by the registry that you currently hold this matter.

We note that the matter number 8708/2006, which arises from the same matter and has identified issues to this particular matter, was decided by Arbitrator Wynyard on 15 February 2007.

We kindly ask you to inform us of the progress of this particular matter.”

1. On 17 April 2007 the Registrar of the Commission issued the following direction to both parties:

“1.The Respondent Worker is invited to file and serve written submissions in respect of her application for costs of the discontinued appeal proceedings (WCC564-06) on or before Wednesday 2 May 2007.

2.The Appellant Employer is invited to file and serve submissions in reply on or before Wednesday 16 May 2007.”

1. In response to the Registrar’s direction Ms Unicomb made submissions that:

·costs are claimed in accordance with Rule 15.7 of the 2006 Rules as a result of Mayne Group’s election to discontinue its appeal on 19 December 2006, against the decision of Arbitrator McManamey dated 20 October 2006;

·notification of the application for costs was forwarded to the Commission and Mayne Group on 22 December 2006 which also included a claim for costs incurred in the related matter WCC8708-06;

·Arbitrator Wynyard disposed of the application for costs in matter WCC8708-06 by finding that Ms Unicomb’s application for costs was made in accordance with the Rules and was properly served on Mayne Group on 22 December 2006 (paragraph 4 of the ‘Short Reasons’ dated 15 February 2007);

·as a result of the appeal lodged in this matter, which was discontinued by Mayne Group, Ms Unicomb was required to respond to the appeal and to file a notice of opposition of the appeal.  Mayne Group has now discontinued the appeal and Ms Unicomb is entitled to the costs incurred in responding to the appeal: Integral Energy Australia v Penning (2004) NSWWCCPD 66;

·in related matter WCC8708-06, Mayne Group unsuccessfully argued before Arbitrator Wynyard, that it had the benefit of section 341 of the Workplace Injury Management and Workers Compensation Act 1998 which prevented an order for costs, unless the Commission is satisfied that the claim is frivolous, vexatious, fraudulent or made without proper justification, and

·it is argued that should it be found that Mayne Group does have the protection of section 341, it is submitted that the proceedings were brought without proper justification as they were brought on more than one occasion and without any evidence in support of the application. Reliance is placed upon the decision of Arbitrator McManamey dated 20 October 2006 (paragraphs 35 to 37).

1. Mayne Group opposes an order for costs following its discontinuance of its appeal, and submits:

   “1.The employer does not agree with the general assertions made on behalf of the worker and says that they are not supported by the evidence.

2.The employer says that costs are in the discretion of the Commission and that in circumstances where the Appeal is discontinued the appropriate exercise of that discretion is to make no order as to costs.

3.The Appellant submits further that the Applicant can only be ordered to pay costs if the Applicant is found to be frivolous, fraudulent, vexatious or made without proper justification and none of those matters are satisfied in this case so that no order of costs can be made against the Applicant in any event.”

1. Section 341(4) of the Workplace Injury Management and Workers Compensation Act (‘the 1998 Act’) has no application to Mayne Group, as that organisation is not a “claimant” within the meaning of the Act. This is clear by reference to the definition of “claimant” in Section 4 of the 1998 Act: “claimant means a person who makes or is entitled to make a claim.”  “Claim” is defined in the same section: “claim means a claim for compensation or work injury damages that a person has made or is entitled to make.”  The section applies to a “claimant”, not an “applicant”, contrary to Mayne Group’s submission.

1. Mayne Group further submits that the appropriate exercise of the discretion to award costs in this matter is to make no order as to costs.  It neither asserts that Ms Unicomb did not incur costs nor that any of Ms Unicomb’s costs have been unreasonably incurred.  Moreover, Mayne Group provides no argument or reasons in support of its contention that no order should be made as to costs.

1. I am satisfied that Ms Unicomb incurred costs as a result of the filing of the appeal by Mayne Group. Given that Mayne Group itself elected to discontinue the appeal, I see no reason why it should not pay Ms Unicomb’s costs, in accordance with Rule 15.7. I note for the record that the application for costs was lodged within the time prescribed by the Rule.

DECISION

1. The Appellant is ordered to pay the costs of the appeal as agreed or assessed.

Gary Byron

Deputy President  

4 June 2007

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE