Q Catering Limited (wrongly sued as Caterair Airport Services (Sydney) Pty Ltd) v Tzifas

[2009] NSWWCCPD 133

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Q Catering Limited (wrongly sued as Caterair Airport Services (Sydney) Pty Ltd) v Tzifas [2009] NSWWCCPD 133
APPELLANT:		Q Catering Limited (wrongly sued as Caterair Airport Services (Sydney) Pty Ltd)
RESPONDENT:		Harry Tzifas
INSURER:		Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER:		A1-6224/08
ARBITRATOR:	Mr B McManamey
DATE OF ARBITRATOR’S DECISION:		10 June 2009
DATE OF APPEAL DECISION:		20 October 2009
SUBJECT MATTER OF DECISION:		Costs where appeal discontinued by appellant
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Sparke Helmore Lawyers
Respondent:	Maurice Blackburn Lawyers
ORDERS MADE ON APPEAL:		The appellant employer is ordered to pay the respondent worker’s costs of the appeal, which was discontinued on 31 August 2009.  Those costs are assessed at $600.00 plus GST.

BACKGROUND

1. In an Application to Resolve a Dispute (‘the Application’) registered in the Commission on 12 August 2008, Mr Tzifas sought lump sum compensation in the sum of $4,125.00 in respect of a 3 per cent whole person impairment as a result of binaural hearing impairment said to have resulted from his employment with Q Catering between 1987 and 2008.

1. Notwithstanding that Q Catering disputed that it was a noisy employer, the matter was wrongly referred to an Approved Medical Specialist (‘AMS’) for the assessment of the extent of any hearing loss.  After a successful appeal to an Appeal Panel, the matter was ultimately listed for arbitration to determine the issue of noisy employment.  After a two day hearing, the Arbitrator delivered a reserved decision on 10 June 2009 in which he found that Q Catering was a noisy employer.  The Commission issued a Certificate of Determination on 10 June 2009 in the following terms:

“1.  The Respondent is the last noisy employer with injury deemed to have occurred
      on 31 December 1995.

2.I remit the matter to the Registrar for referral to an AMS to assess binaural

loss of hearing resulting from the injury found.”

1. By an appeal filed on 6 July 2009, Q Catering sought leave to appeal the Arbitrator’s determination.  An AMS, Dr Stylis, issued a Medical Assessment Certificate (‘MAC’) on 7 July 2009 assessing Mr Tzifas to have a hearing loss below the threshold required for the recovery of compensation. 

1. On 16 July 2009, Mr Tzifas’ solicitors advised Q Catering’s solicitors that no appeal would be lodged against the MAC and requested advice as to whether the appeal against the Arbitrator’s decision would proceed.  They received no response to that enquiry.

1. In the absence of a response to the letter of 16 July 2009, Mr Tzifas’ solicitors filed a Notice of Opposition to Appeal Against Decision of Arbitrator (‘the notice of opposition’) on 19 August 2009 (one day inside the Registrar’s timetable) in which it submitted that leave to appeal had to be refused because the quantum of compensation at issue in the appeal was less than $5,000.00 and, therefore, the monetary threshold in section 352(2) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) was not satisfied.

1. By an Election to Discontinue Proceedings filed on 31 August 2009, Q Catering discontinued the appeal. In an email dated 31 August 2009, Mr Tzifas’ solicitors sought costs in respect of the arbitration hearing and the appeal (see Part 15 Rule 15.7(4) of the Workers Compensation Commission Rules 2006 (‘the Rules’)).

ON THE PAPERS

1. 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.”

1. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties 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. 

SUBMISSIONS, DISCUSSION AND FINDINGS

1. Mr Tzifas’ solicitors filed submissions in support of his costs application on 24 September 2009 and Q Catering’s solicitors filed submissions in opposition to any costs order on 1 October 2009.

1. Mr Tzifas submits that he is entitled to costs of the arbitration because he succeeded on the issue of whether Q Catering was a noisy employer. In respect of the costs on appeal, he argues that the appeal was futile because it had not met the monetary thresholds in section 352(2) of the 1998 Act and it resulted in unnecessary litigation and caused him to unreasonably incur costs.

1. It is submitted on behalf of Q Catering that:

(a)Q Catering had more than sufficient grounds to appeal the Arbitrator’s decision;

(b)at the time the appeal was filed (6 July 2009) the quantum of compensation in dispute was not properly identifiable because the compensation claimed in the Application was made as a result of a whole person impairment assessment based on a date of injury after 1 January 2002.  However, the Arbitrator’s determination of a date of injury of 31 December 1995 gave rise to a different method of assessment and different rates of compensation that had not been quantified;

(c)the fact that a MAC subsequently found that no compensation was payable does not mean that leave to appeal could not have been granted because of the section 352(2) threshold. The appeal was filed before the MAC was issued and the MAC should have been withheld pending the appeal. Had that occurred, Q Catering would not have been precluded from obtaining leave to appeal because of section 352(2);

(d)to have denied Q Catering leave to appeal because of the terms of section 352(2) because of the subsequent MAC would have significantly prejudiced Q Catering and been a denial of procedural fairness;

(e)Q Catering could not file submissions regarding the threshold at the time it filed the appeal because the transcript was not available;

(f)section 69A of the Workers Compensation Act 1987 (‘the 1987 Act’) provides that if no compensation is payable on a claim because a worker’s total hearing loss is less than 6 per cent, a legal practitioner is precluded from being entitled “to recover any costs from the worker or the employer in connection with acting on the claim”, and

(g)it would be unjust for Q Catering to be ordered to pay costs where Mr Tzifas has been unsuccessful in recovering any compensation and, pursuant to section 69A, is not entitled to costs.

1. It is clear beyond doubt that the appeal was totally without merit. Had Q Catering sought to proceed with it, leave to appeal would have been refused because the threshold in section 352(2) had not been satisfied. Though leave to appeal can and is granted in cases where no award of monetary compensation has been made, that only occurs where it is clear on the evidence that the quantum of compensation “at issue on the appeal” is “at least $5,000.00.” In the present matter, the quantum of compensation claimed in the Application was $4,125.00, well below the section 352(2) threshold. No evidence has been tendered on appeal to suggest that the deemed date of injury determined by the Arbitrator would be likely to result in an award of compensation above $5,000.00. In these circumstances, leave to appeal would have been refused.

1. Rather than waiting for any formal determination by the Commission, Q Catering elected to discontinue the appeal (Part 15 Rule 15.7 of the Rules). However, as Q Catering’s solicitors did not reply to the letter from Mr Tzifas’ solicitors dated 16 July 2009, Mr Tzifas had no option but to prepare, file and serve a notice of opposition to the appeal. In these circumstances, Mr Tzifas has a prima facie entitlement to costs incurred in respect of the appeal.

1. Q Catering’s submissions in opposition to the costs order are completely specious. The appeal should never have been filed. I do not believe that section 69A(6) assists Q Catering on the question of costs of the appeal. That subsection prevents a legal practitioner recovering any costs from an employer “in connection with acting on the claim” if no compensation is payable because the level of hearing loss is less than 6 per cent. The current costs application is in connection with the futile appeal filed by Q Catering, which it failed to discontinue before the expiration of the timetable that required Mr Tzifas to file a notice of opposition. The costs on appeal are not, in the unusual circumstances of this case, “in connection with acting on the claim” but are costs of responding to an unmeritorious appeal after Mr Tzifas’ solicitor requested advice as to whether the appeal would proceed.

1. Given the unmeritorious nature of the appeal, only the briefest submissions in reply were required in the notice of opposition.  In these circumstances, I assess costs at $600.00 plus GST.

1. The application for costs of the arbitration hearing is not an issue capable of determination on appeal because, other than Mr Tzifas’ application for costs of the appeal, the appeal is not properly before me.  In these circumstances the Arbitrator’s previous decision remains on foot and costs of the arbitration are a matter for the Arbitrator.

DECISION

1. The appellant employer is ordered to pay the respondent worker’s costs of the appeal, which was discontinued on 31 August 2009.  Those costs are assessed at $600.00 plus GST.

Bill Roche
Deputy President

20 October 2009

I, TUYET WALLIS, 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