Port Waratah Coal Services Limited v Gardner
[2006] NSWWCCPD 126
•20 June 2006
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEALS AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR, AND AGAINST THE ARBITRATOR EXERCISING THE POWERS OF THE REGISTRAR
CITATIONPort Waratah Coal Services Limited v Gardner [2006] NSWWCCPD 126
APPELLANT: Port Waratah Coal Services Limited
RESPONDENT: Gregory Gardner
INSURER:Corporate Management Services (Australia) Pty Ltd
FILE NUMBER: WCC20801-05
DATE OF ARBITRATOR’S DECISION: 17 February 2006
DATE OF APPEALS DECISION: 20 June 2006
SUBJECT MATTER OF DECISION: Leave to appeal; exercise of powers of the Registrar, and costs item 2.01, Part 2A, Schedule 6 of the Workers Compensation Regulation 2003.
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION: Appellant: Hunt & Hunt, Solicitors
Respondent: Moroney Rutter & Mantach
ORDERS MADE ON APPEALS: Leave to appeal the decision of the Commission constituted by the Arbitrator, dated 17 February 2006, is refused.
The Arbitrator did not exercise the powers of the Registrar in making his decision of 17 February 2006. The decision of the Arbitrator is confirmed.
The Appellant is ordered to pay the Respondent Worker’s costs of the appeals.
NOTE: Two appeals in the alternative, against the same decision of the Arbitrator, are determined together, in this matter.
BACKGROUND TO THE APPEAL
Mr Gregory Angus Gardner, the Respondent Worker, was employed by Port Waratah Coal Services Limited (‘Port Waratah’), the Appellant, at all relevant times. No other details of employment or injury are included in the papers before me.
Mr Gardner is currently in receipt of weekly payments of compensation pursuant to an award of the Compensation Court. He is being compensated on the basis that he is totally incapacitated.
On 24 November 2004 solicitors for Port Waratah wrote to Mr Gardner’s solicitors advising that they had made arrangements for Mr Gardner to be examined by a Dr Morris and by the Vocational Capacity Centre. Upon receipt of this letter Mr Gardner’s solicitors contacted Mr Gardner seeking instructions from him. Mr Gardner’s solicitors then wrote to Port Waratah seeking an explanation as to why the further examinations were reasonable or necessary. Port Waratah did not respond to these inquiries.
Mr Gardner was advised by his solicitors to attend the examination with Dr Morris, and he did so. However he did not attend the appointment with the Vocational Capacity Centre.
On 14 July 2005 Mr Gardner’s solicitors sent to Port Waratah’s solicitors, an assessment of their costs incurred in respect of Mr Gardner’s medical examination.
On 14 September 2005 Port Waratah’s solicitors advised Mr Gardner that they no longer had instructions to act.
On 7 December 2005 Mr Gardner lodged an ‘Application for Orders for Payment of Costs’ in the Workers Compensation Commission (‘the Commission’) seeking an order from the Commission that Port Waratah pay Mr Gardner’s costs as agreed or assessed, including the costs of the Application. Mr Gardner’s solicitor’s claimed costs under items 2.01 and 2.06 of part 2A of Schedule 6 of the Workers Compensation Regulation 2003 (‘the Regulation’).
On 3 February 2006 the matter was listed for an arbitration hearing before the Arbitrator. At the arbitration Port Waratah made an application that the Arbitrator refer the matter to the President on a question of law, on the basis of it being novel and complex. The Arbitrator refused this application stating, “ … it seems to me that the prospects of the President actually granting the referral are sufficiently small, coupled with, it seems to me that given the nature of the claim, you would have appeal rights from any decision I’d make, in any event.”
The Arbitrator duly determined the matter, and a ‘Certificate of Determination’ was issued on 17 February 2006.
On 17 March 2006 Port Waratah lodged an ‘Appeal against Decision of Arbitrator’ with the Commission.
On the same day, Port Waratah also lodged an ‘Appeal from Register’s Determination on Costs’ on the basis that the Arbitrator had exercised the powers of the Registrar.
On 20 April 2006 Mr Gardner lodged with the Commission a ‘Notice of Opposition to Appeal Against Decision of Arbitrator’ and a ‘Notice of Opposition to Appeal Against Decision of Registrar’.
Consequently, there are two appeals against the same decision of the Arbitrator. They are brought in the alternative, first by the Commission constituted by an Arbitrator, and second by the Arbitrator in the purported exercise of the powers of the Registrar in making an assessment of costs. The amount stipulated by the Arbitrator was in fact, the actual amount claimed. It is convenient and appropriate in the circumstances, to deal with both appeals together.
THE DECISION UNDER REVIEW
The ‘Certificate of Determination’ dated 17 February 2006 records the following determination:
“1. Respondent to pay the Applicant’s costs of $312.50.
2.Respondent to pay the costs of this Application as agreed or assessed.”
ISSUES IN DISPUTE
The issues in dispute in the appeal are:
(1)whether leave to appeal the decision of the Arbitrator should be granted;
(2)whether the arbitrator exercised the powers of the Registrar in making an assessment of costs, and
(3)whether Arbitrator erred in the making an order for costs pursuant to item 2.01 of Part 2A of Schedule 6 of the Regulation.
ON THE PAPERS REVIEW
In terms of an appeal brought against the decision of an Arbitrator, 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.”
Port Waratah requests an oral hearing to ventilate the appeal issues, in both matters. Mr Gardner submits that the matters can be determined 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 to consider and determine both appeals on the papers without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
LEAVE TO APPEAL THE DECISION OF THE COMMISSION CONSTITUTED BY THE ARBITRATOR
Before proceeding to deal with an appeal against the decision of an Arbitrator, the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The amount of compensation at issue on appeal does not exceed $5,000. In fact, it is common ground between the parties that Mr Gardner was not making any claim for compensation and there was no amount of compensation in dispute. The amount in dispute is legal costs of $312.20, incurred in connection with Mr. Gardner’s medical examination. Section 352(2)(a) provides that the Commission is not to grant leave to appeal unless the amount of compensation at issue on appeal is … at least $5000 or such other amount as may be prescribed by the Regulations. No such other amount is so prescribed.
Port Waratah submits at the outset, “that it is the precedent that the arbitrator’s order has set which is under appeal, rather than the very small amount of costs.”
It further submits that it made an application to the Arbitrator, for the matter to be “referred to the President pursuant to WIM s. 351 on a question of law.” It further states, “The arbitrator refused this application, yet informed the parties that despite the small monetary sum involved, there was authority and jurisdiction permitting an appeal against his decision, should this become necessary. The employer relied on this assertion [sic] will refer to the Transcript of the proceedings once it becomes available.”
Port Waratah further submits that while there is no monetary award, and the amount involved does not exceed the $5000 threshold, “the precedent set by the costs order made by the arbitrator would amount to well in excess of this monetary threshold if such orders continue to be made by arbitrators in cases involving similar circumstances. So far as s352 (2)(b) is concerned, the employer disputes the entirety of the order made and thus crosses this threshold requirement.”
Having read the transcript of the proceedings before the Arbitrator, I am satisfied that the Arbitrator did make a statement referring to the “small amount of money involved” and did state, when refusing to refer a novel or complex question of law to the President pursuant to section 351 of the 1998 Act, the following, “…it seems to me that given the nature of the claim, you have appeal rights from any decision I’d make, in any event.”
While there is no amount of compensation in issue on appeal, Port Waratah relies upon a number of previous decisions on appeal in the Commission to establish the possibility of appeal involving no monetary award.
Port Waratah cites the decision in Fletchers International Exports Pty Limited v Regan [2004] NSWWCCPD 7 (Regan), and reproduces paragraphs 25 and 26, in which are listed previous decisions on appeal, where the application of the threshold requirements of section 352(2)(a) and (b) of the 1998 Act have been considered. It relies upon this decision “to found this appeal and pass the thresholds for leave as prescribed by s.352.”
However, besides the fact that the requirement of section 352(2)(a) is not met in the instant case, Regan does not in fact support the argument put forward by Port Waratah. In that matter, the Deputy President went on to say, at paragraph 27:
“While a decision of an Arbitrator may not concern an ‘award’ of compensation (as in Mawson), the appeal must nonetheless affect an ‘amount of compensation at issue on the appeal’ to pass the threshold test in section 352(2)(b). Purely procedural decisions, such as a decision to adjourn a telephone conference (Tagg v International Flavours and Fragrances (Australia) Ltd [2003] NSWWCCPD 5), a decision in relation to costs only (Grimson v Integral Energy [2003] NSWWCCPD 29), and a decision to schedule a further telephone conference (Falcon v Narellan Enterprises Pty Limited [2003] NSWWCCPD 34) do not meet this threshold criterion. 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] NSWWCCPD 3), in issue in the appeal (as in the case of the filing of a ‘Reply’ (ADCO Constructions Pty Ltd v Ferguson [2003] NSWWCCPD 21)).”
In Robert Grimson v Integral Energy [2003] NSWWCCPD 29 (Grimson), the Deputy President said at paragraph 18, in relation to section 352(2)(a):
“Not all ‘decisions’ made by a Commission Arbitrator will be able to meet this statutory requirement. In Mawson the ‘decision’ under appeal was the refusal to issue a ‘Direction to Produce Documents’. The Deputy President accepted the argument that such a decision had the potential to affect the Applicant’s ability to fully present his case and therefore affect the substantive issues, namely the whole of the compensation at issue in the appeal.”
Where no award is made, the amount of compensation at issue on appeal must be determined by reference to the amount of compensation at issue in the proceedings before the Arbitrator at first instance (Ingram v Norco Co-operative Limited [2003] NSWWCCPD 1). No amount of compensation was at issue in the proceedings before the Arbitrator in the instant case, and the amount of costs in dispute was exceedingly small, in any event.
The Commission, constituted by a Presidential Member, may grant leave to appeal against a decision of an Arbitrator only where there is an amount of compensation at issue on appeal. That amount 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 (Grimson).
In this matter, the threshold in section 352(2) has not been met, even on the broad view of the tests as set out in the cases cited, and I find accordingly.
Furthermore, while understanding the point made by Port Waratah about a “precedent being set” and what might possibly flow from that, I am bound to consider the threshold issues in the context of the instant case, and cannot take into account speculation about thresholds in similar disputes that may or may not come before the Commission in the future.
Port Waratah expresses concern that a novel or complex question of law was not referred by the Arbitrator, as requested, and that the Arbitrator asserted that there was a right of appeal against his decision in this matter, in any event. It is uncertain as to the precise nature of the appeal rights to which the Arbitrator referred. No substantive submissions are made as to the correctness or otherwise of the Arbitrator’s decision not to refer the question of law to the President. Finally, notwithstanding Port Waratah’s request, a Deputy President has no power to refer a question of law to the President, as this power is conferred on the Commission constituted by an Arbitrator only, pursuant to section 351 of the 1998 Act.
It may now only be open to the Arbitrator to give further consideration to that particular request, in the context of an application to him pursuant to section 350(3) of the 1998 Act, to reconsider his substantive decision. However, in that event, it would be a matter for the Arbitrator to make up his own mind as to any such application.
I note for the sake of completeness only, that this appeal was lodged on 17 March 2006, within 28 days of the Arbitrator’s decision and in compliance with section 352(4) of the 1998 Act.
Having regard to the foregoing, leave to appeal the decision of the Commission, constituted by the Arbitrator is refused.
EXERCISE OF THE POWER OF THE REGISTRAR BY THE ARBITRATOR
Port Waratah has also brought this appeal pursuant to clause 119 of the Regulation, “in that the arbitrator has exercised the powers of the Registrar in making an assessment of costs.” It submits further, “that when the arbitrator made an assessment of costs, if he had jurisdiction to do so, then he was exercising the functions of the Registrar for the purposes of Part 19 of the Regulation.”
Mr Gardner asserts that the decision made by the Arbitrator on 27 February 2006 “does not constitute a Registrar’s determination of costs in the circumstances.” He further submits that his application for orders for payment of costs was allocated to the Arbitrator by the Registrar, pursuant to section 375 of the 1998 Act.
Port Waratah concedes that section 341 of the 1998 Act bestows discretion on the Commission to determine by whom, to whom and to what extent costs are to be paid. In this regard, it takes no issue with the Arbitrator’s reasons in paragraph 9 of his Statement of Reasons for Decision, which are as follows:
“Section 341 of the 1998 Act provides that the Commission has full power to determine by whom, to whom and to what extent costs are to be paid. The power to award costs is, however, limited by regulations made pursuant to Section 337. Those regulations are contained in Part 19 of the Workers Compensation Regulation 2003. Regulation 84 provides that the costs that are recoverable, and the maximum costs that are recoverable for legal services or agent services provided in or in relation to a claim for compensation, are the costs set out in Schedule 6. It is common ground between the parties and, clearly correct, that costs are only recoverable if they fall within one of the items in Schedule 6.”
Port Waratah submits that the application to the Arbitrator was only to determine the application as to whether costs should be ordered within the discretion conferred by section 341 of the 1998 Act and that, “if the worker were successful in this application, that the only order should have been, ‘costs as agreed or assessed’. The arbitrator refused the employer’s application and decided to determine not only whether costs should be payable but to assess the quantum of costs per the Table in respect of 2.01 and 2.06.”
I agree with Mr Gardner’s submission that the matter was referred to the Arbitrator by the Registrar pursuant to section 375 of the 1998 Act. There is no evidence to suggest that the matter was ever referred to the Arbitrator as a delegate of the Registrar. Notwithstanding that the Arbitrator did make an award for a specific amount, being the actual amount sought, the Application was made to the Commission, and not to the Registrar. Perusal of the Commission file confirms that Mr Gardner’s initial Application for an order for payment of costs was in fact made to the Commission, and because he was of the view that there was no prescribed form or procedure upon which it should be lodged, he sought to do so pursuant to Rule 5 of the Workers Compensation Rules 2003.
While the Registrar is empowered to make an assessment of costs, this does not preclude the Commission, constituted by an Arbitrator from determining in a proper case, “to what extent costs are to be paid”, pursuant to section 341 of the 1998 Act, subject to the relevant provisions of the Act and the Regulation. In any event, the liability for payment of costs was the issue before the Arbitrator. The actual amount of the costs claimed and the factual circumstances in which they allegedly arose, were not matters in issue.
I find in the circumstances, that the Arbitrator did not exercise the powers of the Registrar in making his decision.
Port Waratah claims that the Arbitrator is in error in finding that the work in the form of taking instructions from Mr Gardener in relation to his medical examination, falls within item 2.01 of Part 2A of Scheduled 6 of the Regulation. The Arbitrator found that the heading in Part 2A,
“is not setting out a condition precedent for the awarding of costs. Rather the heading defines the time period to which Part 2A applies to any work done in respect of a claim for compensation during the time period which ends when a dispute is referred or an order sought. Once the matter is referred to the Commission the costs for work done thereafter are set out in Part 4 of Schedule 6. Equally, I do not think Part 2A can be read as only applying where the work results in an order for compensation.”
Mr Gardner disagrees with Port Waratah’s submissions in this regard. However, that is a substantive issue in dispute in the appeal, which, given that leave is not granted, I am unable to determine.
In the circumstances the further submissions of the parties in relation to the substantive issues, are not addressed.
DECISION
Neither appeal is successful.
Leave to appeal the decision of the Commission constituted by the Arbitrator dated 17 February 2006, is refused.
The Arbitrator was not exercising the power of the Registrar in making his determination of 17 February 2006. The appeal is not successful. The decision of the Arbitrator is confirmed.
COSTS
The Appellant is to pay the Respondent Worker’s costs of appeals.
Gary Byron
Deputy President 20 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.
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