Sepic v Linfox Transport Group Pty Limited - [2007] NSWWCCPD 171

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Sepic v Linfox Transport Group Pty Limited [2007] NSWWCCPD 171
APPELLANT:  Senad Sepic
RESPONDENT:  Linfox Transport Group Pty Limited
INSURER:Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER:  WCC18446-06
DATE OF ARBITRATOR’S DECISION:          22 February 2007
DATE OF APPEAL DECISION:  6 August 2007
SUBJECT MATTER OF DECISION:                Partial incapacity; section 40 of the Workers Compensation Act 1987; interlocutory decision; section 352(8) of the Workplace Injury Management & Workers Compensation Act 1998; jurisdiction; sections 289 and 289A of the Workplace Injury Management & Workers Compensation Act 1998
PRESIDENTIAL MEMBER:  Acting Deputy President Anthony Candy
HEARING:25 July 2007
REPRESENTATION:  Appellant:      Beilby Poulden Costello,
Lawyers
Respondent:   Mr JW Dodd, instructed by Hunt and Hunt, Lawyers

ORDERS MADE ON APPEAL: 1. Leave to appeal is refused.
2.Each party is to pay his or its own costs of the appeal.

BACKGROUND TO THE APPEAL

Senad Sepic (‘the worker’) was employed by Linfox Transport Group Pty Limited (‘the employer’) as a truck driver and received injury in the course of such employment on 13 October 2004. He ceased work the following day and made a claim for compensation. This claim was met by the employer’s workers compensation insurer Allianz Australia Workers Compensation (NSW) Limited.
In May 2005 or thereabouts the worker returned to his employment on a restricted basis. However after some months he suffered a recurrence and was then off work until a date in early 2006.
On 20 July 2006 the worker’s solicitors wrote to the employer making a claim for lump sum compensation in accordance with the report of Associate Professor van Gelder of 9 May 2005. It is not clear what steps were taken by the employer or its insurer in response to this. However, on 29 December 2006 an ‘Application to Resolve a Dispute’ was registered in the Workers Compensation Commission (‘the Commission’). This claimed weekly payments of compensation under section 40 of the Workers Compensation Act 1987 (‘the 1987 Act’) together with lump sum compensation. In Part 1.2 of the Application it was stated that section 74/54/287A Notices were attached. This, however, does not appear to have been the case. Similarly, it was indicated that correspondence concerning exchange of offers concerning the lump sum claim was attached, however this also appears incorrect.
The claim for lump sum compensation was dealt with by referral to an Approved Medical Specialist (‘AMS’) and was later resolved by consent. The agreement of the parties was embodied in a Certificate of Determination dated 2 May 2007. It is the claim for weekly payments which is the subject of this appeal.
The Reply filed on behalf of the employer relied, inter alia, on the failure of the worker to make a claim for weekly compensation pursuant to section 65 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’) and the non-issue of a section 74 Notice disputing liability by the employer. The employer also relied on section 289 of the 1998 Act and that the Commission had no power to determine the matter. In addition the worker’s average probable and actual earnings and ability to earn were disputed.
The application was referred by the Registrar of the Commission to an Arbitrator to determine the claim for weekly compensation and a teleconference took place on 15 February 2007 where both parties were represented. The employer disputed the Commission’s jurisdiction to determine the application and the Arbitrator found against the worker on this issue.

THE DECISION UNDER REVIEW

The ‘Certificate of Determination’, dated 22 February 2007 records the Arbitrator’s orders as follows:
“1.This application insofar as it relates to the claim weekly payments compensation is dismissed for want of jurisdiction.
2. No order as to costs with respect to the claim for weekly payments.”

ISSUES IN DISPUTE

The issues in dispute in the appeal are:
·whether the Arbitrator was correct in holding that he had no jurisdiction to determine the claim for weekly payments of compensation.
·whether the determination of the Arbitrator appealed against was of an interlocutory nature so that no appeal would lie in respect of it pursuant to section 352(8) of the 1998 Act.
·whether costs ought be ordered against the worker pursuant to section 341(4) and/or (5) of the 1998 Act or against the worker’s legal representative pursuant to section 344 of the same Act.

ON THE PAPERS REVIEW

Section 354(6) of the 1998 Act 1998 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.”
In this matter the worker sought that the matter not be determined on the papers. The only submission made in respect of this matter by the worker was: “The Appellant requests that the proceedings be listed for Hearing so that the written submissions may be supplemented with oral argument”. The employer was content to have the appeal determined on the papers. It was submitted in support that: “The suggested bases for appeal are so manifestly wrong as not to require any oral submissions”.
This was a matter in which I considered that the parties should address the provisions of section 352(8) of the 1998 Act which they had failed to do and also the question of costs sought by the employer. To that end, a telephone conference was held on 25 July 2007 in the course of which further submissions were made by the parties.

LEAVE

Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 of the 1998 Act.
The Application to Appeal was lodged on 15 March 2007 which is within twenty-eight (28) days of the date of the Arbitrator’s decision. Accordingly, section 352(4) is satisfied.
Section 352(2) prescribes a monetary threshold for appeals. That subsection is as follows:
“(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 $5,000.00 (or such other amounts as may be prescribed by the regulation), and
(b)at least 20% of the amount awarded in the decision appealed against.”
Section 352(8) is as follows:
“(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.”
The appropriate part of the Workers Compensation Regulation 2003 (‘the WC Regulation’) is clause 200B. That provides as follows:
“200B 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.”
It is necessary in my opinion to consider what exactly was decided by the Arbitrator in order to determine whether the decision appealed against is of an interlocutory nature. The Arbitrator firstly noted that weekly compensation was sought under section 40 of the 1987 Act from 1 March 2006 on the basis that the worker had been receiving $719.00 per week while his probable earnings but for injury would have been $1,050.00 per week. The difference of $331.00 was accordingly claimed. The Arbitrator then noted that the only medical certificates in evidence were attached to the employer’s Reply and were dated 30 March, 3 April and 20 April 2006. There were in fact four certificates attached to the Reply, the earliest being that of 24 February 2006. All certificates are signed by the worker’s general practitioner, Dr Kuzmanovski. In the earliest certificate he certified the worker fit for suitable duties for the period 24 February to 24 March 2006. In the second certificate he certified the worker unfit for work from 30 March to 31 March 2006 but fit for suitable duties from 1 April to 21 April 2006. On 3 April 2006 the doctor certified the worker unfit for work from 3 April to 7 April 2006 but fit for suitable duties from 8 April 2006 to 21 April 2006. The final certificate certifies the worker fit for suitable duties from 21 April 2006 to 19 May 2006. All references to suitable duties are to a trial of driving duties without lifting or with lifting restricted to five kilograms.
There is no statement from the worker attached to the ‘Application to Resolve a Dispute’ which is surprising considering the compensation which was sought. However, there are three Notices of Assessment under the Income Tax Assessment Acts 1936 and 1997 for the years ended 30 June 2004, 2005 and 2006. There are also a number of payment slips for the period 30 June 2005 to 12 October 2006. It is not clear how the figures to which I have referred at [16] have been arrived at.
The Arbitrator has recorded in his reasons for decision that the worker’s solicitor told him that the worker had instructed him that on 13 December 2006 he received a cheque from the employer for “at least $16,000.00”. It was said to be unclear what this payment represented. For the employer, it was submitted that there never had been a decision made to terminate the worker’s weekly benefits and that payments had been made. The Arbitrator found that:
(a)there was no notice of termination of weekly benefits under section 54 of the 1998 Act;
(b)there was no correspondence from the insurer indicating that it disputed liability for weekly payments in any way;
(c)no claim had been made by the worker for recommencement of weekly benefits based on the belief that they had been terminated; and
(d)there had been no correspondence from the worker alerting the insurer to the existence of any dispute or difficulty relating to the worker’s weekly payments for compensation.
The Arbitrator noted that there appeared to have been a delay in payment but not a refusal or declinature. He held that there was no dispute and as a result the Commission did not have jurisdiction under section 289 of the 1998 Act. However, he thought if there were a dispute, then section 289A would also operate to deprive the Commission of jurisdiction.
Clause 200B of the WC Regulation, to which I have earlier referred, has the effect of adding the words “preliminary or interim” to the terms used in section 352(8) of the 1998 Act in describing what is an interlocutory decision. It should be noted that the amendment to section 352(8), excluding interlocutory decisions from the appeal provisions, commenced operation on 1 November 2006 and applies to a claim for workers compensation made before the commencement of that amendment (see Schedule 6 Part 18J Clause 5 of the 1987 Act).
The worker submitted that the decision of the Arbitrator was a final decision since no further application could be brought by him claiming the weekly compensation which was sought. It was said that the worker could not or was not obliged to do anything further to define the dispute which was said to exist but the burden of doing so fell on the employer. Since it had not done so, it was said, the worker could not remedy that defect.
The worker relied on the provisions of section 54 of the 1987 Act. That section provides as follows:
“54 (1) If a worker –
(a)has received weekly payments of compensation for a continuous period of at least twelve weeks; and
(b)has provided the worker’s employer, or the employer’s insurer, with a certificate by a medical practitioner specifying the expected duration of the worker’s incapacity,
the person paying the compensation shall not discontinue payment, or reduce the amount, of the compensation during the period of incapacity so specified without giving the worker the prescribed period of notice of intention to discontinue payment of the compensation or to reduce the amount of the compensation.
Maximum penalty: 50 penalty units
(2) If the payment of compensation to a worker is discontinued, or the amount of compensation is reduced, by a person in circumstances involving the commission by that person of an offence under subsection (1), the worker may, whether or not that person has been prosecuted for the offence, recover from the person an amount of compensation that –
(a)if no period of notice has been given – is equal to the amount of compensation, or additional compensation, that would have been payable during the prescribed period of notice if payment of the compensation had not been discontinued or if the amount of that compensation had not been reduced; or
(b)if less than the prescribed period of notice has been given – is equal to the amount of compensation that would have been payable during the balance of the prescribed period of notice if payment of the compensation had not been discontinued or if the amount of the compensation had not been reduced.
(3) The prescribed period of notice referred to in this section is –
(a)if the worker has been receiving weekly payments of compensation for a continuous period of at least 12 weeks but less than 1 year – 2 weeks; or
(b)if the worker has been receiving weekly payments of compensation for a continuous period of 1 year or more – 6 weeks.
(4) The notice referred to in the section shall –
(a)be given to the worker personally or by post; and
(b)if the regulations so require, be in such form (or contain such information) as may be prescribed by the regulations.
(5) This section is subject to section 58.
(6) This section does not apply to a reduction in weekly compensation as a result only of the application of different rates of compensation after the expiration of earlier periods of incapacity for which higher rates were payable (whether under section 38 or otherwise).
(7) The notice referred to in this section is to include information about the possible entitlements of the injured worker under section 38 and the requirements for the worker to obtain those entitlements if:
(a)the notice relates to a reduction in the amount of the worker’s weekly compensation as a result of the application of section 40; and
(b)the injured worker is not in receipt of earnings; and
(c)the information has not been supplied to the worker under section 40A.
The giving of that information does not constitute an admission of liability by an employer or insurer under this Act or independently of this Act.
(8) Before giving a notice under this section, an insurer must carry out an internal review of the decision to give notice.”
Section 58 of the 1987 Act provides as follows:
“58 (1) If, because of a worker’s return to employment or a change in employment that affects the worker’s earnings –
(a)the worker is not entitled under this Act to any weekly payments of weekly compensation that have been paid to the worker; or
(b)the amount of any weekly payments of compensation that have been paid to the worker exceed the amount to which the worker was entitled under this Act (including under the former Act),
the Commission may order the worker to refund to the person who made the payments any amount to which the worker is not entitled in respect of payments during any period not exceeding 2 years (or such shorter or longer period as the Commission considers to be appropriate) from the date of payment.
(2) Any such refund may, in accordance with the terms of the Commission’s order, be deducted from future weekly payments of compensation to the worker or be recovered as a debt in a court of competent jurisdiction.
(3) This section applies even though the weekly payments of compensation are payable under an interim payment direction by the Registrar.
(4) Without limiting this section, the Commission may make such orders as the Commission thinks fit for the adjustment of weekly payments of compensation to a worker to take account of any overpayments made to the worker (whether or not in this circumstances referred to in subsection (1)) in respect of any previous period.
(5) In this section:
(a)a reference to a worker’s return to employment includes a reference to the worker’s commencing employment, and
(b)a reference to employment includes a reference to employment in the worker’s own business.
(6) A court before which proceedings for an offence under section 57 are taken against a person may, on the application of the Authority (whether or not the person is convicted of the offence), make any order that it is satisfied the Commission could make under this section as a result of the return to employment or change in employment to which the alleged offence relates. The standard of proof that applies in connection with an application under this subsection is proof on the balance of probabilities.
(7) The power conferred on a court by subsection (6) is subject to the following limitations:
(a)it does not authorise the making of an order providing for the refund to be deducted from any future weekly payments of compensation to the extent that they are payable under an award of the Commission,
(b)it does not authorise the making of an order of the kind described in subsection (4).
(8) An order under subsection (6) is enforceable as a civil debt and may be recovered as such in any court of competent jurisdiction by the person to whom the order requires payment to be made.
(9) A Local Court cannot order the payment of an amount under subsection (6) that when added to the amount of any penalty imposed for the offence concerned would exceed an amount equivalent to 500 penalty units.
(10) This section does not limit any other right or recovery that a person may have against another person in respect of any overpayment of compensation to that other person.”
Section 289 of the 1998 Act relevantly provides:
“289(1) A dispute about a claim for weekly payments cannot be referred for determination by the Commission unless the person on whom the claim is made:
(a)disputes liability for the claim (wholly or in part), or
(b)fails to determine the claim as and when required by this Act.
NOTE: The determination of a claim requires the commencement of weekly payments of compensation. The failure to commence weekly payments without having disputed liability constitutes a failure to determine the claim.
(2)…
(3)…
(4)…
(5) The Commission may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination by the Commission.”
Section 289A which was also relied on by the Arbitrator is as follows:
“289A (1) A dispute cannot be referred for a determination by the Commission unless it concerns only matters previously notified as disputed.
(2) A matter is taken to have been previously notified as disputed if:
(a)it was notified in a notice of dispute under this Act or under the 1987 Act after a claim was made or a claim was reviewed, or
(b)it concerns matters raised in writing between the parties before the dispute is referred to the Registrar for determination by the Commission, concerning an offer of settlement of a claim for lump sum compensation.
(3) The Commission may not hear or otherwise deal with any dispute if this section provides that the dispute cannot be referred for determination by the Commission. However, the Commission may hear or otherwise deal with a matter subsequently arising out of such a dispute.
(4) Despite subsection (3), a dispute relating to previously un-notified matters may be heard or otherwise dealt with by the Commission if the Commission is of the opinion that it is in the interests of justice to do so.”

The question as to what is an interlocutory decision has been considered by Deputy President Roche in a number of cases. In Nott v The Western Stores Limited and ors [2007] NSWWCC PD 83 at [22] he said:
“22. While common law authorities are not automatically applicable to the unique legislative framework within which the Commission operates, I believe that the authorities of Little [Little v State of Victoria (1994) 4 VR 596] and Wickstead [Wickstead v Browne (1992) 30 NSWLR 1 at 11] provide clear statements of principle that are applicable to the present matter. The Arbitrator’s order has not finally determined the parties’ substantive rights in the principal claim. The Appellant Worker is free to issue further proceedings seeking the same relief. The Arbitrator made no orders or findings that will restrict or inhibit that being done. Therefore, the Arbitrator’s order was, in the circumstances of this case, interlocutory in nature and is not a ‘decision’ against which leave to appal can be granted. Therefore, leave to appeal must be and is refused.”
In Little an order striking out proceedings because they did not disclose a cause of action was held to be interlocutory and in Wickstead an order for summary dismissal under Part 13 rule 5 of the NSW Supreme Court Rules was also held to be interlocutory.
The same Deputy President revisited the question in P&O Ports Limited v Alan Hawkins [2007] NSWWCCPD 87. In that he said at [35]:
“35.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 & All Risks Insurance Company Ltd and others [No 2] (1990) 21 NSWLR 200 per Kirby P (as he then was) at 206 (‘Southern Cross’)). 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 threat 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 parties 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 on this question, is that the focus of attention is upon the legal effect of the order under examination, not its practical consequences.’
36.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 question has recently been considered by the Supreme Court of New South Wales in State of New South Wales v Bujdoso [2007] NSWCA 44 at [29] and [30]. Ipp JA said the following:
“29.There is a long line of cases in the High Court of Australia which have held that, in regard to disputes as to whether a judgment is interlocutory or final, the question to be asked is whether ‘The judgment or order, as made, finally disposes of the rights of the parties’: Hall v Nominal Defendant (1966) 117 CLR 423 at 442 to 445 per Windeyer J; Licul v Corney (1975) 180 CLR 213 at 225 per Gibbs J (as his Honour then was); Port of Melbourne Authority v Anshun Pty Limited No 1 (1980) 147 CLR 35; Carr v Finance Corporation of Australia Limited [No 1] (1981) 147 CLR 246 at 248 per Gibbs CJ; Sanofi v Park Davis Pty Limited [No 1] (1982) 149 CLR 147.
30.In A Hudson Pty Limited v Legal & General Life Australia Limited (1985) 1 NSWLR 701, this Court held that the determination of whether a judgment is final or interlocutory should be made by reference to the legal rather than the practical effect of the judgment. Mahoney JA held that the test for determining whether a judgment was final or interlocutory should be that which applied in Australia generally; namely, whether the judgment appealed from, as made, finally determined the rights of the parties. His Honour (at 715) said that the test laid down in Licul v Corney and Carr was not stated for the purposes only of the Act considered in those cases. His Honour observed, ‘what was said [by the High Court] was said in terms of generality indicating, I think, that such was to be the test applicable generally in this country’.”
The High Court itself, McHugh, Kirby and Callinan JJ, in Bienstein v Bienstein (2003) [HCA 7] said this at [25]:
“The usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties [Licul v Corney (1976) 180 CLR 213 per Gibbs J (referring to Hall v NominalDefendant (1966) 117 CLR 423)]. The test requires the appellate court to look at the consequences of the order itself and to ask whether it finally determines the rights of the parties in a principal cause pending between them [Hall vNominal Defendant ( 1966 ) 117 CLR 423 at 443 per Windeyer J]. Accordingly, orders refusing to set aside a default judgment or refusing to grant an extension of time are not final judgments because the unsuccessful party could make a further application for the same relief, even though such application might have very little prospects of success [Carr v FinanceCorporation of Australia Ltd [ No 1] (1981) 147 CLR 246 at 248, 256; Hall vNominal Defendant (1966) 117 CLR 423 at 441 ].”
The worker relied in particular on a passage in the reasons of Deputy President Roche in Hawkins where he said the following at [37 j)]:
“in the absence of a definition of ‘interlocutory’ it is for the Commission to determine which matters fall within the terms of clause 200B. In my view, in order to achieve the Commission’s clearly stated statutory objectives, it is necessary and appropriate to restrict the meaning of the phrase ‘preliminary or interim orders … of an interlocutory nature’ to matters that are genuinely preliminary, provisional or interim in nature …”
This passage must be considered in its context. Subparagraphs d), h) and k) of the paragraph to which I have referred make reference to “issues such as injury, worker, and substantial contributing factor”. The learned Deputy President considered that a determination on such a matter would not be interlocutory although it may not finally determine the parties’ rights, regardless of what decision was reached on those issues.
I do not consider that the passage relied on in Hawkins assists the worker in this matter. The determinations to which the Deputy President refers are quite different from the determination in this case that the Commission had no jurisdiction. It has been urged on me that the determination of the Arbitrator is final and prevents the worker from commencing fresh proceedings. It is necessary to look at the statutory provisions to which I have earlier referred in order to properly consider this.
The employer raised the issue in its Reply of whether the worker was entitled to commence the proceedings having regard to the provisions of section 289 and 289A of the 1998 Act. The worker relies on the note to section 289(1) which is as follows:
“NOTE: The determination of a claim requires the commencement of weekly payments of compensation. The failure to commence weekly payments without having disputed liability constitutes a failure to determine the claim.”
Section 274 makes provision for the person on whom the claim is made either accepting liability and commencing weekly payments or disputing liability. Failure to do so is an offence under section 283 of the 1998 Act. Section 274(1) is in these terms:
“274(1) Within 21 days after a claim for weekly payments is made the person on whom the claim is made must determine the claim by:
(a) accepting liability and commencing weekly payments, or
(b) disputing liability.”
It is reasonably clear in this case, despite the absence of much relevant probative material from the ‘Application to Resolve a Dispute’ that a claim was made on the employer and weekly payments were commenced. At some subsequent time the worker returned to employment and once again the details in relation to this are unclear. The question arises whether the employer or insurer was required to continue making payments of compensation until a notice had been given pursuant to section 54 of the 1987 Act. The worker relies on the employer’s failure to do so in this case. I have set out the provisions of Section 54 at [22].
The employer relies upon subsection (6) of section 54 as not requiring a notice to be given when the worker ceases to be entitled to weekly compensation by reason of his return to work. Section 54 is subject to section 58 which deals with the refund of weekly payments paid after return to work etc.
If I understand the worker’s submissions correctly, the employer or insurer, it was said, was obliged to give a notice under section 54 upon the worker’s return to work in order to cease or reduce payments so that that the worker might then bring a further claim pursuant to section 40 of the 1987 Act. The employer submits this would be absurd and that section 54(6) applies. The worker however says that that subsection deals only with variations in compensation by reason of the expiry of various statutory periods rather than factual changes in circumstances such as return to work.
Section 54 requires that the worker provide the employer insurer with a certificate by a medical practitioner specifying the expected duration of the worker’s incapacity. In this case, apart from the four certificates to which I have referred at [16] which were attached to the Reply, there are no medical certificates in evidence.
The question of the validity of a section 54 notice was considered by Deputy President Fleming in ANZ Banking Group Limited v F [2004] NSWWCCPD 91. The learned Deputy President said at [20]: “However the effect of a failure to give proper notice under section 54 of the 1987 Act is not to deny the Commission jurisdiction over any subsequent dispute. To accept this submission would be to potentially deny the worker, whose benefits are wrongfully discontinued, from a remedy, in terms of an application to the Commission”. The Deputy President referred to the decisions of the Court of Appeal in BW Esler Services Pty Ltd v Dulhunty (2000) 21 NSWCCR 267 and of Neilson J in Goundar v Warren’s Motor Village Pty Ltd (2002) 24 NSWCCR 593. Both the cases referred to by the Deputy President were concerned with notices pursuant to section 54 of the 1987 Act relying on section 52A of the same Act to terminate liability for weekly payments. That is not the case here. I have found nothing in the Deputy President’s decision which would assist in a resolution of this matter.
The worker’s principal submission in relation to the appeal was that the onus was thrust on the employer or its insurer to give the appropriate notice so that an application might be made to the Commission to resolve the dispute. I am not persuaded that section 54 has any application to the facts of this case, principally because of the absence of proof of relevant medical certificates justifying the continuance of payments of compensation. It is not necessary in my view to express any view on the construction of section 54(6) suggested by the employer.
Turning to the provisions of section 289 of the 1998 Act, it is reasonably clear that the employer has not disputed liability for the claim for payments under section 40 upon the worker’s return to work, nor has it failed to determine the claim as and when required by the Act. There was no evidence of any such claim. The Arbitrator’s decision was, in my opinion, entirely correct in this regard. It does appear to me, contrary to the submissions on behalf of the worker, that a further claim could be made pursuant to section 40 of the 1987 Act for payments of compensation said to be due to the worker and the employer would then be required, pursuant to section 274 of the 1998 Act to either accept liability and commence weekly payments or dispute liability. If liability were disputed then the Commission would have jurisdiction to determine the dispute.
Accordingly, I have come to the view that the decision appealed against is interlocutory in nature only and leave to appeal must be refused. It must be said that were the appeal to be allowed and the matter referred back to the Arbitrator for determination, the material relied on by the worker would in my view be insufficient for any award of weekly compensation to be made and the claim would necessarily fail unless the Arbitrator gave leave to admit further evidence. It would be remarkable if there had not been some correspondence between the parties concerning the issue of weekly compensation upon the worker’s return to work and prior to the lodging of an ‘Application to Resolve a Dispute’ however neither party has chosen to put it in evidence. Nor has any documentation relating to the payment to the worker in December 2006 been relied on. One is left to speculate whether that payment satisfied any claim the worker had for arrears of compensation prior to the lodgement of the ‘Application to Resolve a Dispute’.

DECISION

Leave to appeal is refused.

COSTS

The employer seeks an order that the worker pay the costs of the arbitration in relation to the claim for weekly payments and also pay the costs of appeal. Additionally, some suggestion was made that the worker’s solicitor ought be held to be liable to pay the costs pursuant to section 344 of the 1998 Act. Section 341 of the 1998 Act is in the following terms:
“341 (1) Costs to which this Division applies are in the discretion of the Commission.
(2) The Commission has full power to determine by whom, to whom and to what extent costs are to be paid.
(3) The Commission may order costs to be assessed on the basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 (or in relevant regulations under Division 4 of this Part) or on an indemnity basis.
(4) The Commission may not order the payment of costs by a claimant unless the Commission is satisfied that the claim was frivolous or vexatious, fraudulent or made without proper justification.
(5) If the Commission is satisfied that part only of a claim is frivolous or vexatious, fraudulent or made without proper justification, the Commission may order the claimant to pay the costs relating to that part of the claim.
(6) Any party to a claim may apply to the Commission for an award of costs.”
It was submitted by the employer that the part of the claim in relation to weekly payments was “frivolous” or “without proper justification”. I do not understand it to have been said that the claim for weekly payments was vexatious or fraudulent. On this appeal by way of review I am asked by the employer to vary the costs order made by the Arbitrator in relation to the lump sum claim on 2 May 2007 so as to provide that the employer is only to pay the worker’s costs in relation to the lump sum claim and not the weekly compensation claim.
There are a number of answers to this submission. The first is that the employer has not sought leave to appeal and the second is that, even if leave had been sought, I do not consider that it could be granted pursuant to section 352(2) since there is no amount of compensation at issue on the appeal. (As to which see Grimson v Integral Energy [2003] NSWWCC PD 29and Hien Huu Tran v AP Facilities Pty Limited [2004] NSWWCC PD 3). The third is that the orders recorded in the Certificate of Determination of 2 May 2007, including the costs order in favour of the worker, were expressed to be by consent and the Certificate of Determination of 22 February 2007 in relation to the weekly payments claim states: “no order as to costs with respect to the claim for weekly payments”.
So far as the costs of the appeal are concerned, I am not satisfied, pursuant to section 341, that the claim made for weekly payments was frivolous or vexatious, fraudulent or made without proper justification. It appears that there had been considerable delay in making these payments, although the facts could have been made clearer by the parties. It may be that the worker does have a further claim for weekly compensation in respect of the period concerned and it is sufficient to say that I am not satisfied that the provisions of section 341 have been made out. Even less so would I be satisfied that the worker’s solicitors should pay the costs of either the claim or the appeal pursuant to section 344 of the 1998 Act. That refers to “seriously neglect, serious incompetence or serious misconduct” delaying or contributing to delaying the matter. I do not think that the conduct of the solicitor involved any such neglect, incompetence or misconduct.
For these reasons each party is to pay his or its own costs of the appeal.

Anthony Candy

Acting Deputy President
6 August 2007

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ANTHONY CANDY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

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