Newby v NSW Police Force - [2009] NSWWCCPD 100

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPLICATION FOR RECONSIDERATION OF A DECISION OF THE COMMISSION CONSTITUTED BY A PRESIDENTIAL MEMBER
CITATION:		Newby v NSW Police Force [2009] NSWWCCPD 100
APPLICANT FOR RECONSIDERATION:		Jason Newby
RESPONDENT FOR RECONSIDERATION:		NSW Police Force
INSURER:		Allianz Workers Compensation (NSW) Ltd-Treasury Managed Funds
FILE NUMBER:		A1-8532/08
ARBITRATOR:	Mr R Foggo
DATE OF ARBITRATOR’S DECISION:		24 February 2009
DATE OF APPEAL DECISION:		7 July 2009
DATE OF RECONSIDERATION DECISION:		14 August 2009
SUBJECT MATTER OF DECISION:		Costs reconsideration; section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998.
PRESIDENTIAL MEMBER:		Keating P
HEARING:		On the papers
REPRESENTATION:		Applicant:	Harris Wheeler Lawyers
Respondent:	DLA Phillips Fox Lawyers
ORDERS MADE:		1. The Application for Reconsideration brought pursuant to section 350(3) of the 1998 Act with respect to the costs order in NSW Police Force v Newby [2009] NSWWCCPD 75 is refused. The findings and orders in that matter are confirmed and the Application for Reconsideration is dismissed. 2. No order as to costs of the Application for Reconsideration.

BACKGROUND

On 16 July 2009, Mr Jason Newby (‘the applicant’) filed with the Workers Compensation Commission (‘the Commission’), a letter seeking reconsideration under section 350(3) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), of the cost order made in NSW Police Force v Newby [2009] NSWWCCPD 75.

The respondent to the reconsideration application is the NSW Police Force (‘the Police Force/the respondent’).

In NSW Police Force v Newby [2009] NSWWCCPD 75, the Police Force was successful on appeal and I made the following order in respect of costs of the appeal:

“Each party pay its or his own costs of the appeal.”

It is this decision that Mr Newby seeks that I reconsider under section 350(3) of the 1998 Act.

RECONSIDERATION ON THE PAPERS

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.”

Neither party has made any submission concerning the appropriateness or otherwise of dealing with the present Application on the papers without holding any conference or formal hearing. Having regard to the written material which is before me I am satisfied I have sufficient information to proceed on the papers and that this is the appropriate course to adopt in dealing with the Application for Reconsideration.

Section 350(3) of the 1998 Act provides:

“(3)The Commission may reconsider any matter that has been dealt with by the Commission and rescind, alter or amend any decision previously made or given by the Commission.”

The Registrar’s Guideline dated 22 October 2007 provides guidance to parties and their legal representatives with respect to appropriate procedure concerning requests for reconsideration. It is there stated:

“APPLICATIONS FOR RECONSIDERATION
There is no specific form for making an application for reconsideration under sections 329(1A), 350(3) or 378. Parties may make application by way of letter that includes…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] NSWWCCPD 100
Decision Date: 7 July 2009

CaseChat Overview and Summary

In the matter of Newby v NSW Police Force, the dispute centred around the assessment and payment of costs associated with a claim made by the plaintiff under the Workplace Injury Management and Workers Compensation Act 1998. The case was heard by the Supreme Court of New South Wales. The plaintiff, who was a former police officer, alleged that he had suffered a work-related injury and sought compensation. The NSW Police Force, represented by the defendant, contested the claim, leading to a complex adjudication process where costs became a significant point of contention.

The primary legal issue before the court was the interpretation and application of section 350(3) of the Act, which deals with the discretion of the court in awarding costs in disputes related to workplace injuries. Specifically, the court needed to determine whether the costs incurred by the plaintiff were reasonable and necessary in the context of pursuing a claim against the NSW Police Force. The court was also tasked with assessing the appropriateness of the costs awarded by the lower tribunal, and whether there was any basis for reconsideration under the relevant statutory provisions.

In delivering the judgment, the court closely examined the statutory language and the context of the costs incurred. The court concluded that the original tribunal had exercised its discretion correctly, and that the costs awarded were reasonable and proportionate to the nature and complexity of the dispute. The court emphasised that the statutory provision provides broad discretion to the tribunal, and the plaintiff had not demonstrated any grounds for the court to intervene or reconsider the costs. The court thus upheld the original tribunal's decision and dismissed the plaintiff's application for reconsideration of costs.

The final orders of the court confirmed the dismissal of the plaintiff's application for reconsideration of costs. The court affirmed that the costs awarded by the tribunal were appropriate and in line with the statutory framework. No further orders regarding costs were to be made, and the decision of the tribunal remained in place.

Orders