Shams v Venue Services Group Pty Ltd - [2013] NSWWCCPD 57

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:	Shams v Venue Services Group Pty Ltd [2013] NSWWCCPD 57
APPELLANT:	Naimollah Shams
RESPONDENT:	Venue Services Group Pty Ltd
INSURER:	Allianz Australia Workers’ Compensation (NSW) Ltd
FILE NUMBER:	A1-16411/12
ARBITRATOR:	Mr J Wynyard
DATE OF ARBITRATOR’S DECISION:	25 July 2013
DATE OF APPEAL DECISION:	4 November 2013
SUBJECT MATTER OF DECISION:	Interlocutory orders; leave to appeal; dismissal of proceedings by Arbitrator; whether dispute existed for referral to the Commission; whether proceedings a nullity; ss 289 and 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998; improper submissions by appellant’s solicitor on appeal
PRESIDENTIAL MEMBER:	Deputy President Bill Roche
HEARING:	On the papers
REPRESENTATION:	Appellant:	Buttar, Caldwell & Co
Respondent:	DLA Piper Australia
ORDERS MADE ON APPEAL:	1. Leave to appeal is refused. 2. Each party is to pay his or its own costs of the appeal.

INTRODUCTION

In this matter, the Arbitrator determined that the appellant worker had not “made a claim” and, as a result, the insurer was “unable to carry out its function” under ss 274, 279 and 289 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The Arbitrator was therefore satisfied that the proceedings were a nullity and he struck the matter out. The worker has appealed.

BACKGROUND

This matter has a most unsatisfactory history. While both sides have filed chronologies, those chronologies are deficient in several key respects and neither complied with Practice Direction No 6. The worker’s chronology has referred to only one (potentially) relevant date and the employer’s chronology, though more detailed, has referred to numerous matters that are not dealt with in the evidence and has omitted other matters that are. The relevant history appears to be as follows.
The appellant worker, Naimollah Shams, suffered a fracture to his left orbit and soft tissue injuries to his neck when he was assaulted while allegedly working as a security guard for the respondent employer, Venue Services Group Pty Ltd (the respondent), at a nightclub on 24 August 2008.
According to the chronology filed by the respondent’s solicitor, Ms Jenne Tzavaras, which is largely based on material that is not in evidence, Mr Shams’ solicitors, presumably Buttar, Caldwell & Co, wrote to a person named Henry Robertson on 22 October 2008 seeking particulars of Mr Shams’ injury and employment.
On 3 December 2008, Buttar, Caldwell & Co allegedly wrote to the WorkCover Authority of NSW (WorkCover) and confirmed that Mr Robertson did not have workers compensation insurance for the period of risk.
On 11 December 2008, Buttar, Caldwell & Co made a claim for compensation on WorkCover. That document is not in evidence and the nature of the claim is not disclosed in the evidence.
On 23 December 2008, WorkCover wrote to Buttar, Caldwell & Co acknowledging receipt of the claim of 11 December 2008 and stating, as a reasonable excuse for not accepting liability, that there was no proof of…

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: [2013] NSWWCCPD 57
Decision Date: 4 November 2013

CaseChat Overview and Summary

The appellant, Mr Shams, brought an appeal against the decision of the respondent, Venue Services Group Pty Ltd, to dismiss proceedings for interlocutory orders. The underlying dispute involved a claim for workers' compensation, which was initially referred to an arbitrator. The arbitrator dismissed the proceedings on the basis that there was no existing dispute that could be referred to the Commission. Mr Shams subsequently appealed this decision, arguing that the arbitrator's dismissal was improper and that the proceedings should not be considered a nullity. The appeal raised issues regarding the interpretation and application of sections 289 and 352(3A) of the Workplace Injury Management and Workers Compensation Act 1998, as well as the conduct of Mr Shams' solicitor during the appeal process.

The court considered whether the arbitrator's dismissal of the proceedings was justified and whether the proceedings should be deemed a nullity. Additionally, the court examined the submissions made by Mr Shams' solicitor during the appeal, determining if they were improper. The court found that the arbitrator correctly dismissed the proceedings, as there was no dispute that could be referred to the Commission. The court further held that the proceedings were not a nullity and that the submissions made by Mr Shams' solicitor during the appeal were improper. These factors, combined with the lack of merit in the appeal, led to the refusal of leave to appeal.

Consequently, the appeal was dismissed, and each party was ordered to bear their own costs. The court emphasised the importance of proper legal submissions and the need for a valid dispute to be present for referral to the Commission. This decision reinforces the procedural requirements in workers' compensation matters and the consequences of failing to comply with these requirements.

Orders

Orders of the court

1. Leave to appeal is refused.

2. Each party is to pay his or its own costs of the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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