Roads and Traffic Authority v Warden
[2004] NSWWCCPD 55
•17 August 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY THE REGISTRAR
CITATION:Roads and Traffic Authority v Warden [2004] NSW WCC PD 55
APPELLANT: Roads and Traffic Authority
RESPONDENT: Lloyd Warden
INSURER:Treasury Managed Fund
FILE NUMBER: WCC13843-2003
DATE OF ARBITRATOR’S DECISION: 17 May 2004
DATE OF APPEAL DECISION: 17 August 2004
SUBJECT MATTER OF DECISION: Award of costs by delegate of Registrar, following determination of nil percentage whole person impairment under section 66 of the Workers Compensation Act 1987.
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:On the papers.
REPRESENTATION: Appellant: Thompson Cooper Lawyers
Respondent: Bale Boshev Lawyers
ORDERS MADE ON APPEAL: The matter is remitted to an Arbitrator to be determined in accordance with these reasons.
THE APPEAL
On 11 June 2004 the Roads and Traffic Authority (‘the Appellant Employer’) sought leave to bring an appeal against a decision of the delegate of the Registrar in the Workers Compensation Commission (‘the Commission’), dated 17 May 2004. The decision appealed against is an order for “costs as agreed or assessed” purported to be made by the Director of Professional Services as delegate of the Registrar, contained in a Certificate of Determination of the same date.
The Respondent to the Appeal is Lloyd Warden (‘the Respondent Worker’).
The appeal was referred to me for review on 13 August 2004.
ISSUES IN DISPUTE
The issue in dispute in the appeal, as submitted by the Appellant Employer, is:
“Costs should follow the event. The Application was unsuccessful in recovering any compensation. The Applicant should not be entitled to any costs.”
JURISDICTION
Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
The Appellant Employer submits that on 10 June 2004 it received from the Respondent Worker’s Solicitors a preliminary estimate of costs and disbursements in the sum of $4,741.55, and states:
“The Respondent [Appellant Employer] does not know what the Applicant’s [Respondent Worker] final assessment of costs and disbursements will be. The Respondent submits that the Applicant’s final assessment of costs and disbursements will probably exceed $5,000. The entire costs order is in dispute namely 100%.”
In this matter I am satisfied that the appeal has been filed within 28 days of the decision appealed against (section 352(4) of the 1998 Act).
Notwithstanding that the Appellant Employer states that the final assessment of costs and disbursements “will probably exceed $5,000”, as matters stand, the amount at issue on the appeal is not at least $5,000. In any event, the decision under review does not concern an amount of compensation but rather, an award of costs.
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.”
Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the parties, 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
The Appellant Employer has submitted, in summary, that the Respondent Worker claimed lump sum payments under sections 66 and 67 of the Workers Compensation Act 1987 (the 1987 Act). The Approved Medical Specialist (‘the AMS’) assessed him as suffering from nil % whole person impairment. A Certificate of Determination was issued, dated 17 May 2004, finding that he had suffered a nil % whole person impairment due to the injury suffered on 12 April 2002. The motor accident that occurred on 12 April 2002 was of a minor nature and the Respondent Worker was suffering from pre-existing degenerative changes in the right shoulder joint unrelated to the motor accident. In these circumstances it would be unjust for the Respondent Worker to be awarded costs as agreed or assessed. Costs should follow the event. The Respondent Worker was unsuccessful in recovering any compensation and should not be entitled to any costs.
The Respondent Worker has submitted, in summary, that the threshold requirements are not met and that leave to appeal should not be granted. In any event, Dr Isaacs assessed him as having suffered an injury as a result of the accident, which occurred on 12 April 2002. The Appellant Employer had him examined by Dr Macauley who found gross restrictions and limitation in movement. The doctors disagreed as to the cause of his condition and he was subsequently referred to an AMS for assessment, which resulted in a nil % whole person impairment finding. Awarding of costs is discretionary pursuant to section 341(1) of the 1998 Act, and further, section 341(6) allows any party to apply to the Commission for an award of costs, and this is not subject to a party having been successful in order to make such an application. Finally, in order to overturn the decision, it would require the Appellant Employer to demonstrate error, and the Appellant Employer has failed to do so.
DISCUSSION AND FINDINGS
An order for costs does not concern an amount of compensation either in the appeal or in the original claim (Grimson v Integral Energy [2003] NSW WCC PD 29; Borg v Garnville Pty Limited [2003] NSW WCC PD 30; Benson v Integral Energy [2003] WCC PD 37; Stevan Mlinar v Goninan & Co Limited t/as Maintrain [2003] NSW WCC PD 39). Where an appeal relates only to an issue of costs there is no dispute before the Commission, constituted by a Presidential Member, about an amount of compensation between the parties, as required by section 352(2) of the 1998 Act. In the circumstances leave to appeal would not have been granted, had the threshold issue required a determination.
I note further, that costs in the Commission do not follow the event but are in the discretion of the Commission pursuant to section 341(1) of the 1998 Act. However, a determination is not required in relation to this issue, either.
There is a more fundamental issue in this matter that relates to the validity of the Certificate of Determination purportedly issued by a delegate of the Registrar. Section 294 of the 1998 Act provides:
“294 Certificate of Commission’s determination
(1)If a dispute is determined by the Commission, the Commission must as soon as practicable after the determination of the dispute issue the parties to the dispute with a certificate as to the determination.
(2)A brief statement is to be attached to the certificate setting out the Commission’s reasons for the determination.
(3)If the Registrar is satisfied that a certificate as to a determination or a statement attached to the certificate contains an obvious error, the Registrar may issue, or approve of an Arbitrator issuing, a replacement certificate or statement to correct the error.”
I note that no statement of reasons was attached to the Certificate of Determination, as required by section 294(2) of the 1998 Act and Rule 73 of the Workers Compensation Commission Rules 2003.
Section 375 of the 1998 Act provides for the constitution of the Commission for particular proceedings.
“375Constitution of Commission for particular proceedings
(1)For the purposes of any proceedings, the Commission is to be constituted by an Arbitrator except as provided by this section.
(2)The Registrar may give directions as to which Arbitrator is to constitute the Commission for the purposes of any particular proceedings or class of proceedings.
(3)For the purposes of any proceedings on an appeal against a decision of the Commission constituted by an Arbitrator, the Commission is to be constituted by a Presidential member.”
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 function of an Arbitrator).
It is the Commission that issues a Certificate of Determination and the reasons attached, for a decision, not the Registrar (section 294 of the 1998 Act). In terms of the functions of the Registrar (not an Arbitrator), section 371 of the 1998 Act provides that the Registrar has and may exercise all of the functions of an Arbitrator, and further, the Registrar may delegate to any member or members of staff of the Commission any of the Registrar’s functions under the Workers Compensation Acts, except the power of delegation. The section expressly provides for the delegation of the Registrar’s functions. It does not allow the delegations of the functions of an Arbitrator to a member of staff, either when the Registrar is acting as an Arbitrator, or by an Arbitrator himself or herself.
It is clear by reference to the file that the Director of Professional Services, as delegate of the Registrar, issued the Certificate of Determination and made the decision and the orders recorded in it. Only an Arbitrator or the Registrar, when exercising the functions of an Arbitrator, may perform these functions (Jopa Pty Limited t/as Tricia’s Clip-n-Snip v Edenden [2004] NSW WCC PD 50). In the instant matter, the Director of Professional Services had no power to perform the functions and make the decision under delegation from the Registrar, and was acting ultra vires. This amounts to an error of law going to jurisdiction. Whether this in turn, amounts to a nullity depends upon the express or implied intention of the particular statutory provisions that govern it (Jadwan Pty Ltd v Secretary, Department of Health and Aged Care (2003) 204 ALR 55, Gray, Downs and Kenny JJ), and must be determined having regard to the language, objects and purposes of the statute, and the consequences of finding the decision invalid and of no effect (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355).
The Workers Compensation Acts (the 1987 Act and the 1998 Act) provide a statutory benefits scheme for workers compensation claims. It is intended that the scheme be a comprehensive statement of workers’ entitlements and employers’ liabilities in relation to such claims. A decision that purports to determine those rights and liabilities on the basis of error cannot be permitted to stand. Consequently, the matter remains to be properly determined by an Arbitrator (Australian Traineeship System (Cargill Meat Processes Pty Limited) v Ramage [2004] NSW WCC PD 31). In the instant case, the effect of the jurisdictional error is to nullify the decision and deprive it of any effect.
I find that the orders contained in the Certificate of Determination of 17 May 2004 are a nullity and the matter remains to be determined properly by an Arbitrator, pursuant to the legislation.
Section 352(7) provides that a Presidential Member may, on review, remit the matter to an Arbitrator for determination in accordance with any decision or directions made. I propose to follow this course so that the Registrar may allocate the matter to an Arbitrator.
DECISION
The matter is remitted to an Arbitrator to be determined in accordance with these reasons.
Gary Byron
Deputy President
17 August 2004
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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