Morris v Bourke Shire Council
[2007] NSWWCCPD 162
•24 July 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Morris v Bourke Shire Council [2007] NSWWCCPD 162
APPELLANT: Robert Andrew Morris
RESPONDENT: Bourke Shire Council
INSURER:GIO Workers Compensation (NSW) Limited
FILE NUMBER: WCC15193-06
DATE OF ARBITRATOR’S DECISION: 8 March 2007
DATE OF APPEAL DECISION: 24 July 2007
SUBJECT MATTER OF DECISION: Leave to appeal; preliminary or interim orders of an interlocutory nature; section 352(8) of the Workplace Injury Management and Workers Compensation Act 1998.
PRESIDENTIAL MEMBER: Deputy President Bill Roche
HEARING:On the papers
REPRESENTATION: Appellant: McCabe Partners
Respondent: TurksLegal
ORDERS MADE ON APPEAL: Leave to appeal the Arbitrator’s direction of 3 April 2007 is refused.
No order as to costs of the appeal.
BACKGROUND TO THE APPEAL
On 29 March 2007 Robert Andrew Morris (‘the Appellant Worker/Mr Morris’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a direction, made on 8 March 2007.
The Respondent to the Appeal is Bourke Shire Council (‘the Respondent Employer’).
On 12 May 2003 Mr Morris settled a claim for lump sum compensation in the Compensation Court of NSW (matter no. 4400-02) for the following amounts:
a) $11,250.00 in respect of 15% permanent loss of use of the left arm at or above the elbow;
b) $8,000.00 in respect of 10% loss of use of the right arm at or above the elbow;
c) $2,000.00 in respect of 5% permanent impairment of the neck, and
d) $11,250.00 in respect of pain and suffering.
By an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 22 September 2007 Mr Morris sought additional lump sum compensation and compensation for medical and related expenses as a result of the same injuries pleaded by him in the Compensation Court, namely, injuries 4 June 2001, 27 October 2001 and as a result of the nature and conditions of his employment with the Respondent Employer from 1 July 1987 until 27 October 2001.
At a teleconference on 1 December 2006 a Commission Arbitrator referred the assessment of Mr Morris’ additional losses or impairments to an Approved Medical Specialist (‘AMS’). Professor Robin JED Higgs conducted that assessment on 10 January 2007 and a Medical Assessment Certificate (‘MAC’) was issued on 6 February 2007.
A further teleconference was held on 8 March 2007 at which the Arbitrator made the following directions:
“1.That pursuant to section 329 of the WIM Act [sic] the MAC be referred back to the AMS Professor Robin JED Higgs for a determination as to whether or not he brought to account within the MAC issued on 6 February 2007 the earlier determination of impairment the determination for lump sum benefits received by the Applicant and identified in Part 1 Related Claims as referred to in the Application to resolve a dispute.
2.Parties be advised of these Directions.”
The Commission formally issued the above direction on 3 April 2007 (‘the 3 April 2007 direction’).
Mr Morris seeks leave to appeal against this direction.
PRELIMINARY MATTERS
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 any conference or formal hearing.”
The Appellant Worker submits that he should have an oral hearing and makes reference to ReRefugee Review Tribunal and Another; Ex Parte Aala (2000) 204 CLR 82 at [101]. That authority says nothing about the need for an oral hearing of an appeal in the present circumstances and is of no assistance. The parties have made detailed written submissions and I do not believe that an oral hearing is necessary.
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the Respondent Employer 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.
ISSUES IN DISPUTE
The Appellant Worker argues that as no appeal was lodged against the MAC under section 327 of the 1998 Act, the MAC is binding on the parties and the Arbitrator was in error in issuing the 3 April 2007 direction.
LEAVE TO APPEAL
Monetary Threshold
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
Section 352, as amended by the Workers Compensation Legislation Amendment (Miscellaneous Provisions) Act 2005 (‘the amending Act’), 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.
(1A) An appeal is to be made by application to the Registrar. The appeal is not to proceed unless the Registrar is satisfied that the requirements of this section and any applicable Rules and regulations as to the making of the appeal have been complied with.
(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.
(7A) Section 345 of the Legal Profession Act 2004 applies to and in respect of the provision of legal services in connection with an appeal to the Commission under this section in the same way as it applies to and in respect of the provision of legal services in connection with a claim or defence of a claim for damages referred to in that section.Note: Section 345 of the Legal Profession Act 2004 prohibits a law practice from providing legal services in connection with a claim or defence unless a legal practitioner associate responsible for the provision of those services believes, on the basis of provable facts and a reasonably arguable view of the law, that the claim or defence has reasonable prospects of success.
(8) In this section, ‘decision’ includes an award, interim award, order, determination, ruling and direction, but does not include any award, order, determination, ruling or direction of an interlocutory nature prescribed by the regulations.” (emphasis added)
The amendments effected by the amending Act were the inclusion of subsections (1A), (7A) and the amendment of subsection (8) to exclude orders of an interlocutory nature from the definition of ‘decision’. Subject to the regulations and transitional provisions, these amendments commenced on 1 November 2006.
Before leave to appeal can be granted it is necessary that “the amount of compensation at issue on the appeal” is both “at least $5,000.00” and “at least 20% of the amount awarded in the decision appealed against”. The amount of compensation at issue on the appeal must be determined by reference to the amount of compensation at issue in the proceedings before the Arbitrator at first instance. In Grimson v Integral Energy [2003] NSWWCCPD 29 at [30] Deputy President Fleming held:
“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.”
In Fletchers International Exports Pty Limited v Regan [2004] NSWWCCPD 7 (‘Regan’) it was held at [27] that:
“The decision must have a real capacity to put the amount of compensation, determined by reference to the decision or the claim (Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSWWCC PD 3), in issue in the appeal (as in the case of the filing of a ‘Reply’ (ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCC PD21)).”
As no compensation has been awarded in this matter the amount of compensation at issue on appeal is determined by reference to the compensation claimed in the Application. Mr Morris’ claim exceeds $5,000.00. As no compensation has yet been awarded it is not necessary for the Appellant Employer to satisfy the threshold in section 352(2)(b) (Mawson v Fletchers International Exports Pty Ltd [2002] NSWWCCCPD 5).
Therefore, the monetary thresholds in section 352(2) are satisfied.
Time
The appeal was lodged within 28 days of the Arbitrator’s direction in compliance with section 352(4) of the 1998 Act.
Interlocutory Order
In light of the above amendments to section 352(8), I issued the following Direction to the parties on 15 June 2007:
“1.The parties are directed to the provisions of section 352(8) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), as amended by Act 113 of 2005, which excludes from the definition of ‘decision’, ‘any award, order, determination, ruling or direction of an interlocutory nature prescribed by the regulations’.
Under Clause 200B of the Workers Compensation Regulation 2003, as amended, ‘for the purposes of section 352(8) of the 1998 Act, all preliminary or interim orders, determinations, rulings and directions of an interlocutory nature are prescribed’.
Under Schedule 6 Part 18J Clause 5 of the Workers Compensation Act 1987 the above amendments to section 352 ‘apply in respect of a claim for workers compensation made before the commencement of the amendments’.
2.In light of the above amendments, the parties are directed to make written submissions on the following issues:
·whether the current appeal is against an order, ruling, determination or direction of an interlocutory nature, and, if so,
·the basis on which leave to appeal can be granted.
2.The Appellant Worker’s submissions are to be filed and served on or before 4.30pm Friday 29 June 2007 and the Respondent Employer’s submissions are to be filed and served on or before 4.30pm Friday 13 July 2007.
3.The parties’ attention is drawn to the authority of P & O Ports Limited v Hawkins [2007] NSWWCCPD 87.”
As a result of the above direction Mr Morris’ solicitor filed further submissions on 16 July 2007, well outside the timetable set out above. These submissions refer to a decision made by a different Arbitrator on 8 March 2007 and are unhelpful in that they do not address the issues raised in the direction I issued on 15 June 2007.
The Respondent Employer’s solicitor filed further submissions on 13 July 2007 in which he referred to the decision of P & O Ports Limited v Hawkins [2007] NSWCCR 87 (‘Hawkins’) and argues that the 3 April 2007 direction has not disposed of any rights as there were further steps to be taken after the direction.
The first question is whether the amendment to section 352(8) is retrospective. The wording of Schedule 6 Part 18J Clause 5 quoted above is in clear and unambiguous language. The relevant amendments to section 352 apply “in respect of a claim for workers compensation made before the commencement of the amendments” (emphasis added). The term ‘claim’ is defined in section 4 of the 1998 Act to mean “a claim for compensation or work injury damages that a person has made or is entitled to make”. In the present matter the Appellant Worker made a claim for compensation on 21 June 2006. Therefore, it is my view that the amendment to section 352 made by the amending Act does have retrospective operation and applies to the present appeal.
The distinction between a ‘final’ and ‘interlocutory’ order has been said to be “not an entirely satisfactory one” (Southern Cross Exploration NL and others v Fire and All Risks Insurance Company Ltd and others[No 2] (1990) 21 NSWLR 200 per Kirby P (as he then was) at 206). Justice Kirby then noted the words of Lord Denning MR in Salter Rex & Co v Ghosh [1971] 2 QB 597 at 601 that the distinction between final and interlocutory orders was so uncertain that “the only thing for practitioners to do is to look up the practice books and see what has been decided on the point”. His Honour added at 207:
“Thus, no golden thread of logic runs through the cases. There are common features in the rulings. But it is futile to look for an entirely coherent system, notwithstanding the importance of the classification for the appellate rights of the party seeking to contest an order which falls on one side of the line, or another.
The principal point to be noted in at least the recent decisions of the High Court of Australia on this question, is that the focus of attention is upon the legal effect of the order under examination, not its practical consequence.”
His Honour quoted from Gibbs J (as he then was) in Licul v Corney (1976) 50 ALJR 439 at 443-444 where his Honour said that the established view in Australia was that what is interlocutory:
“…depends on the nature of the order made; the test is: does the judgment or order, as made, finally dispose of the rights of the parties?”
The issue in Hawkins was whether the deemed date of injury was the date of claim or the date of incapacity. The decision in Hawkins was that the determination made by the Arbitrator was a “preliminary or interim…determination of an interlocutory nature”. Exactly the same considerations apply in the present matter and I have reached the same conclusion. The Arbitrator has merely issued a direction seeking to clarify the exact meaning of the MAC and whether the AMS has taken into account Mr Morris’ previous losses before reaching his conclusions. Such a direction has not disposed of the parties’ rights but has merely sought to make sure that when those rights are ultimately determined they are done so on the correct basis.
In my opinion the direction of 3 April 2007 is clearly a direction of an interlocutory nature and as such is not a ‘decision’ under section 352 of the 1998 Act and leave to appeal is refused.
DECISION
Leave to appeal the Arbitrator’s direction dated 3 April 2007 is refused.
COSTS
No order as to costs of the appeal.
Bill Roche
Deputy President
24 July 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
2
6
0