Mayne Group Limited v Unicomb
[2006] NSWWCCPD 107
•1 June 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF A DELEGATE OF THE REGISTRAR
CITATION:Mayne Group Limited v Unicomb [2006] NSWWCCPD 107
APPELLANT: Mayne Group Limited
RESPONDENT: Marilyn Unicomb
INSURER:Self insurer
FILE NUMBER: WCC564-06
DATE OF DELEGATE’S DECISION: 23 February 2006
DATE OF APPEAL DECISION: 1 June 2006
SUBJECT MATTER OF DECISION: Jurisdiction; competence of appeal; functions and powers of Registrar and Delegate of the Registrar; procedural fairness.
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION: Appellant: Leigh Virtue & Associates,
Solicitors
Respondent: Maurice Blackburn Cashman
Lawyers
ORDERS MADE ON APPEAL: The Commission has no jurisdiction to determine this appeal.
The Appellant is ordered to pay the Respondent Worker’s costs of this appeal.
BACKGROUND TO THE APPEAL
It is not disputed that Ms Marilyn Unicomb, the Respondent Worker in this appeal, was employed by Mayne Group Limited (‘Mayne Group’), the Appellant. However, there are no particulars before me as to the nature or length of that employment, nor details as to injury sustained during the course of or arising out of that employment.
Ms Unicomb was in receipt of weekly payments of compensation for the period 4 November 2004 to 22 November 2004. She provided Mayne Group with two workers compensation certificates alleging total incapacity for work for this period. The certificate dated 19 November 2004 stated that she would be fit for duty from 22 November 2004.
On 7 March 2005 Mayne Group wrote to Ms Unicomb alleging that it had become aware that during her period of total incapacity for work for the period under discussion, Ms Unicomb was able to return to work, but that she had not provided advice, accordingly.
In its letter dated 7 March 2005 Mayne Group further stated that section 57 of the Workers Compensation Act 1987 (‘the 1987 Act’) provides that a worker who is in receipt of weekly compensation must notify the person making these payments, of his or her commencement of employment with some other person. Mayne Group also noted that section 58 of the 1987 Act “provides for the ordering of a refund by a worker of payments of compensation benefits made in circumstances of such a return to employment”. On this basis Mayne Group requested the refund of benefits paid to Ms Unicomb for the relevant period, in the amount of $909.00, within 28 days of the date of the letter.
On 20 September 2005, solicitors for Mayne Group wrote to Ms Unicomb requesting payment of the $909.00 overpayment of weekly benefits within 14 days of the date of that letter. They indicated that if payment was not received as required, they would commence action for the recovery of the overpayment.
On 12 January 2005, Mayne Group lodged an ‘Application to Resolve a Dispute’ (‘the Application’) in the Workers Compensation Commission (‘the Commission’) seeking reimbursement of the overpayment of weekly compensation pursuant to section 58 of the 1987 Act. The amount claimed by Mayne Group was $909.00.
On 18 January 2006 the Delegate of the Registrar (‘the Delegate’) decided to deal with the dispute under “Expedited assessment” pursuant to section 292 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
On 16 February 2006 a notice of a Conciliation Teleconference to be held on 23 February 2006 was sent to both parties by a Delegate. The notice advised that the proceedings were being conducted under Part 5 of Chapter 7 of the 1998 Act. The notice also stated that, “accordingly, the requirement for the Respondent to lodge a Reply to the Application, the issuing of Directions of Production and a determination of the dispute by the Commission was deferred until such time as the Registrar or Commission determines”. It was also noted that, “Documents that have not already been served or provided need to be produced to me by 5.00pm, 22 February 2006.”
On 21 February 2006 Mayne Group wrote to the Registrar stating that they did not agree that the matter was capable of being dealt with under “Expedited assessment” and that it was not in a position to provide or serve documents until it received a Reply from the Respondent, Ms Unicomb.
On 23 February 2006 the Delegate issued a ‘Notification of Refusal of Application’ on the basis that Mayne Group had not filed sufficient evidence to cause Ms Unicomb to answer the claim.
On 24 February 2006 Mayne Group wrote to the Registrar requesting the return, as a matter of urgency, of documents that had been filed in the Commission.
On 9 March 2006 Ms Unicomb wrote to the Registrar acknowledging that Mayne Group’s ‘Application to Resolve a Dispute’ was refused and sought to have her costs paid by Mayne Group pursuant to section 341 of the 1998 Act.
On 9 March 2006 Mayne Group’s solicitors wrote to the Commission stating that they intended filing an appeal in accordance with clause 119 of the Workers Compensation Regulations 2003 (‘the Regulations’) and included a request that no further matters of any kind in which they were involved should be delegated to the particular Delegate and further sought to have the Delegate disqualified from any considerations involving their firm “having regard to his past and continuing inability to consider or determine matters in an unbiased, objective and competent manner”.
On 13 March 2006 Mayne Group lodged an ‘Appeal from Registrar’s Determination’ with the Commission seeking reimbursement of overpayment of compensation pursuant to section 58 of the 1987 Act, together with an order for interest and costs. The form is endorsed with the following instruction as to its purpose:
“When you should use this form.
You should use this form when lodging an Appeal on a matter of law, pursuant to Clause 119 of the Workers Compensation Regulation 2003, from the Registrar’s determination on an assessment of costs.”
On 17 March 2006 the Commission issued directions including a direction that Mayne Group serve on Ms Unicomb a copy of the letter addressed to the Commission dated 9 March 2006, a sealed copy of the Appeal from the Registrar’s Determination and a copy of the Direction.
On 17 March 2006 the Registrar wrote to Mayne Group’s solicitors in response to their letter of 9 March 2006, stating:
“Your comments regarding the delegate of the Registrar in this matter appear to relate to the grounds of appeal, and are therefore for consideration in that context.
Any request for disqualification of a decision-maker should be made in relation to the specific matter, to enable the request in that matter to be considered.”
On 12 April 2006 Ms Unicomb lodged with the Commission a ‘Notice of Opposition to Appeal Against Decision of Arbitrator’.
THE DECISION UNDER REVIEW
The Delegate’s ‘Notification of Refusal of Application’ dated 23 February 2006 records the following determination:
“13. The application against the above Respondent is refused.”
The Delegate’s ‘Notification of Refusal of Application’ contained a ‘Statement of Reasons’ which may be summarised as follows:
·section 292 of the 1998 Act gives the Registrar [or her delegate] discretion to deal with a dispute referred for determination by the Commission under Part 5, Expedited assessment, which includes disputes of weekly payments of compensation;
·the matter in dispute clearly concerns weekly payments of compensation and accordingly the Delegate was conferred with the jurisdiction of the Registrar to deal with the dispute under Expedited assessment;
·there is a presumption in the legislation that the party lodging an application must be ready to proceed to resolution of the dispute at the time that the application is lodged. Relevantly section 290 of the 1998 Act provides that when a dispute is referred for determination by the Commission, each party to the dispute must provide to the other party and the Registrar, as and when required to do so by the Rules, such information and documents as the Rules require;
·rule 38(1) of the Workers Compensation Commission Rules 2003 (‘the Rules’) for the purposes of section 290 of the 1998 Act, specifies that the Applicant must lodge and serve with the application to resolve a dispute, all information and documents on which the Applicant proposes to rely and which are in the possession or control of the Applicant at that time;
·in this matter, Mayne Group alleges that Ms Unicomb received weekly compensation for the period 4 November 2004 to 22 November 2004 and submitted workers compensation certificates alleging total incapacity for work but had not advised of her return to employment;
·Mayne Group’s application contains the following four supporting documents on which it proposes to rely:
oletter to Ms Unicomb from Mayne Group dated 7 March 2005 making the allegation of Ms Unicomb’s commencement of employment in the stated period;
oletter from Mayne Group’s solicitors dated 20 September 2005 referring to the 7 March 2005 letter and seeking reimbursement of overpayment allegedly totalling $909.00;
oWorkCover Medical Certificate dated 12 November 2004, and
oWorkCover Medical Certificate dated 19 November 2004.
·Mayne Group failed to provide any documentation or information to support the allegation of 7 March 2004;
·Practice direction No. 9 reflects the objectives of the Commission for an Applicant at the date of lodgement to be ready to proceed to resolution of the dispute. The onus is not on the Respondent to make out its case, and the Delegate concluded, “On the material before me in these proceedings I am not satisfied the Applicant’s case has sufficient substance for the Respondent to have a case to answer”.
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
(1)whether leave can be granted to proceed with the appeal having regard to section 296(2) of the 1998 Act;
(2)whether the Delegate of the Registrar had the jurisdiction to determine the matter in dispute;
(3)was the Delegate of the Registrar purporting to exercise the function of an Arbitrator (see sections 371(2) and section 375(4) of the 1998 Act), and
(4)whether the Delegate of the Registrar failed to accord procedural fairness and natural justice to the Mayne Group in dealing with the dispute.
ON THE PAPERS REVIEW
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.”
Mayne Group is silent on the issue of whether the appeal should be determined on the papers. Ms Unicomb submits that the matter can be decided on the papers.
Having regard to the submissions, evidence and documents that are before me, 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.
LEAVE TO APPEAL AND JURISDICTION TO DETERMINE THE APPEAL
I have carefully read and taken into account, the submissions on appeal of both parties. I consider that there is no requirement to reproduce them in this determination.
Before proceeding to deal with an appeal from a decision of an Arbitrator, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act. However, this is not an appeal from a decision of an Arbitrator, nor by the Registrar exercising the functions of an Arbitrator pursuant to section 371 (1) of the 1998 Act.
Moreover, a delegate of the Registrar is not empowered to exercise the powers and functions of an Arbitrator (see discussion in Jopa Pty Limited t/as Tricia’s Snip-n-Clip v Edenden [2004] NSWWCCPD 50, and Roads and Traffic Authority v Warden [2004] NSWWCCPD 55).
Even if it was an appeal from the decision of an Arbitrator, or the Registrar exercising the functions of an Arbitrator, the amount of compensation at issue on appeal does not exceed $5,000 as required by section 352(2)(a) of the 1998 Act.
I note only for the sake of completeness, that the appeal was lodged on 13 March 2006, within 28 days of the decision appealed against.
However, this proceeding lodged by Mayne Group cannot and does not constitute an appeal pursuant to section 352 of the 1998 Act, and, as I have said, on a reading of the appeal documents and accompanying submissions, it does not purport to be an appeal lodged pursuant to that section.
Section 295(1)(a) of the 1998 Act provides that Part 5 Expedited assessment, applies to a dispute referred to the Commission that concerns, inter alia, weekly payments of compensation.
Section 296(1) provides that the Registrar may exercise functions under this Part with respect to a dispute on the basis of the documents and information provided to the Registrar, “when the dispute was referred for determination by the Commission.”
Section 296(2) provides that, “Except as provided by this Part, the exercise of any functions of the Registrar under this Part is not subject to appeal or review.”
Section 371 (1) provides that the Registrar has and may exercise all the functions of an Arbitrator. The Delegate of the Registrar exercised the function set out in section 296 of the 1998 Act, by delegation from the Registrar (section 371(2) of the 1998 Act). These are functions of the Registrar and not functions of an Arbitrator. The Registrar does not constitute and does not exercise functions as the Commission, “except when acting as an arbitrator pursuant to the Registrar’s power to exercise the functions of an Arbitrator.” (section 375(4) of the 1998 Act).
An appeal cannot be made from the decision of the Registrar or her Delegate, that is made under Part 5 of Chapter 7 of the 1998 Act, nor is there provision in the legislation for an appeal to be made to the Commission constituted by a Presidential Member, against the decision of the Registrar in relation to the exercise of her power of delegation.
Finally, Mayne Group purports to lodge the appeal in relation to the Delegate’s ‘Notice of Refusal of Application’, “in accordance with Clause 119 of the Regulations” being the Workers Compensation Regulations 2003 (‘the Regulations’). This is confirmed in the letter from Mayne Group’s solicitors, dated 9 March 2006, and the appeal itself was lodged on the form provided specifically for the purpose of making an appeal on a matter of law, pursuant to Clause 119 of the Regulations, from the Registrar’s determination on an assessment of costs.
Clause 119 of the Regulations, under which this appeal is purportedly made, is found in Subdivision 5 Appeals of Division 4 Assessment of costs, and has no relevance to the issues in dispute between the parties, in this appeal. The right of appeal set out in Clause 119 of the Regulations is confined to the subject matter and circumstances to which Division 4 of the Regulations applies. Consequently, this appeal is not competent and I have no jurisdiction to make a substantive determination.
DECISION
The Commission, constituted by a Presidential Member, has no jurisdiction to determine this appeal. Consequently, the appeal is not successful.
COSTS
Notwithstanding that the Commission constituted by a Presidential Member has no jurisdiction to determine a matter, the Commission so constituted is competent to deal with the issue of costs of proceedings in which its absence of jurisdiction is established (Pezet v Pezet (1946) 47 SR (NSW) 45; see also Gazebo Hotels Pty Ltd v Sydney City Council (1980) 41 LGRA 91).
The Appellant is ordered to pay the Respondent Worker’s costs of this appeal.
Gary Byron
Deputy President
1 June 2006.
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
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