Sorbello v Yellamo Pty Ltd and ors

[2006] NSWWCCPD 91

WORKERS COMPENSATION COMMISSION

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

CITATION:Sorbello v Yellamo Pty Ltd and ors [2006] NSWWCCPD 91

APPELLANT:  Gaetano Sorbello

FIRST RESPONDENT:  Yellamo Pty Ltd

SECOND RESPONDENT:  D W Morrell Pty Ltd

THIRD RESPONDENT:  Pejeni Pty Ltd

FOURTH RESPONDENT:  Leprechauns in the Garden

INSURER FOR FIRST RESPONDENT:           QBE Workers Compensation (NSW) Ltd

INSURER FOR SECOND RESPONDENT:      CGU Workers Compensation Limited

INSURER FOR THIRD RESPONDENT:          GIO Workers Compensation (NSW) Limited

INSURER FOR FOURTH RESPONDENT:      Allianz Workers Compensation (NSW) Limited

FILE NUMBER:  WCC18195-03

DATE OF ARBITRATOR’S DECISION:          15 April 2005

DATE OF APPEAL DECISION:  17 May 2006

SUBJECT MATTER OF DECISION:                Leave to appeal costs orders

PRESIDENTIAL MEMBER:  Acting Deputy President Bill Roche

HEARING:On the papers

REPRESENTATION:  Appellant:                  Brydens Law Office

FirstRespondent:      Diana Benk

Second Respondent:  Sparke Helmore

Third Respondent:     Moray & Agnew

Fourth Respondent:   Allianz Australia Workers Compensation (NSW) Limited

ORDERS MADE ON APPEAL:  Leave to appeal is refused.

The decision of the Arbitrator dated 15 April 2005 is confirmed.

No order is made as to costs of the appeal.

BACKGROUND TO THE APPEAL

1. On 12 May 2005 Gaetano Sorbello (‘the Appellant Worker’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 15 April 2005.

1. There are four Respondents to the Appeal.  I have listed and identified the Respondents in the appeal in the same manner and style as they appeared in the Application to Resolve a Dispute (‘the Application’) filed in the Commission on 27 July 2004.  A Notice of Opposition has been filed on behalf of the Second and Third Respondents but no documentation has been filed on behalf of the First or Fourth Respondents.  I note that the Fourth Respondent is not a legal entity but, for the purposes of this appeal, nothing turns on that fact.

1. This matter has a long history going back to matter number 53361 of 2001 in the Compensation Court of NSW (‘the Court’) where the Appellant Worker sought compensation from the First and Second Respondents for industrial deafness allegedly caused by his employment with those companies between July 1995 and June 1996.  The matter claim came on for hearing before Judge Hughes on 5 September 2003 when it was adjourned. 

1. Ultimately the matter was transferred to the Commission.  At a teleconference on 10 March 2004 the Appellant Worker’s solicitors indicated a need to join two additional respondents.  The matter was discontinued so that could be done.

1. The current Application was subsequently filed and was listed for a teleconference on 7 March 2005 when certain directions were made as to particulars to be provided by the Appellant Worker’s solicitors.  The matter was listed for conciliation and arbitration on 12 April 2005.

1. At the conciliation and arbitration on 12 April 2005 the Appellant Worker’s solicitors were not ready to proceed with the claim and discontinued the Application under rule 74 of the Workers Compensation Commission Rules 2003 (‘the Rules’).

1. After the Appellant Worker’s legal advisers indicated their intention to discontinue the matter the Arbitrator heard argument from the Respondents about costs and made certain orders as to the payment of costs pursuant to section 344(1)(c) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’). The Appellant Worker appeals from those orders though the real appellant is the Appellant Worker’s solicitors as the disputed costs orders were made against them and not against the Appellant Worker.

1. No issue has been taken by any of the parties as to whether the Appellant Worker has standing to appeal where his claim for compensation has been discontinued, but for reasons set out later in this decision I do not believe anything turns on this procedural point.

THE DECISION UNDER REVIEW

1. The ‘Certificate of Determination’, dated 15 April 2005 records the Arbitrator’s orders as follows:

“1.The matter is discontinued.

2.The Applicant’s solicitors are to indemnify the First, Second and Fourth Respondents against that part of the costs payable and incurred by them since 10 March 2004.

3.No order for costs against the Third Respondent.

4.The Applicant is to have no costs.

5.I certify this matter as being complex.”

ON THE PAPERS REVIEW

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 Appellant Worker 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. 

LEAVE TO APPEAL

1. The appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.

1. Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of section 352 the 1998 Act.  That section provides:

“352     Appeal against decision of Commission constituted by Arbitrator

(1) A party to a dispute in connection with a claim for compensation may, with leave of the Commission constituted by a Presidential member, appeal to the Commission as so constituted against a decision in respect of the dispute by the Commission constituted by an Arbitrator.

(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 (or such other amount as may be prescribed by the regulations), and

(b)at least 20% of the amount awarded in the decision appealed against.

(3) If the Commission refuses to grant leave to appeal, the Commission must state reasons for the refusal in writing to the parties.

(4) An appeal can only be made within 28 days after the making of the decision appealed against.

(5) An appeal under this section is to be by way of review of the decision appealed against.

(6)   Evidence that is fresh evidence or evidence in addition to or in substitution for the evidence received in relation to the decision appealed against may not be given on an appeal to the Commission except with the leave of the Commission.

(7) On appeal, the decision may be confirmed or may be revoked and a new decision made in its place. Alternatively, the matter may be remitted back to the Arbitrator concerned, or to another Arbitrator, for determination in accordance with any decision or directions of the Commission.

(8) In this section, decision includes an award, interim award, order, determination, ruling and direction.”

1. The key provision is section 352(2) which provides that the Commission is not to grant leave to appeal “unless the amount of compensation at issue on the appeal is” at least $5,000.00.  The present appeal does not relate to an ‘amount of compensation’ but relates to the costs orders made against the Appellant Worker's solicitors.

1. Section 352 has been considered by the Commission in several cases. In Grimson v Integral Energy [2003] NSW WCC PD 29 Deputy President Fleming stated at [23]

“The decision ‘no order as to costs’ clearly does not concern an ‘amount of compensation’, either in the appeal, or in the original claim. The costs associated with an application to the Commission are not themselves an amount of compensation under the Workers Compensation Acts. ‘Compensation’ is defined in section 4 of the 1998 Act as ‘compensation means compensation under the Workers Compensation Acts, and includes any monetary benefit under those Acts’. Chapter 4 of the 1998 Act deals with ‘Workers Compensation’. Part 3 of the 1987 Act deals with ‘Compensation-Benefits’. In the circumstances of this case there was no ‘amount of compensation at issue’ as the substantive proceedings had been discontinued.”

1. At paragraph [30] of Grimson Deputy President Fleming added:

“The preferred interpretation, in my view, is that the Commission, constituted by a Presidential Member, may grant leave only to appeal against a decision of an Arbitrator where there is an amount of compensation at issue on the appeal that is (a) at least $5,000, and, if a monetary award has been made, (b) at least 20% of that award. The ‘. . . amount of compensation at issue on the appeal’ 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.”

1. The same result was reached in Borg v Garnville Pty Ltd [2003] NSW WCC PD 30, Benson v Integral Energy [2003] NSW WCC PD 37,Deeks v Harmer Steel Erections [2004] NSW WCC PD 48 and Zeng v Inset Group Australia Pty Ltd [2004] NSW WCC PD 78

1. In the present case there was no award dealing with the claim for compensation and, as a result, no ‘compensation’ is at issue on the appeal.  No submissions have been made suggesting that the above authorities are wrong and should not be applied in the matter before me.  The Commission is a statutory body and its powers are derived from the relevant legislation.  With respect I believe the decisions referred to above are correct and their application to the matter before me leads to only one conclusion, leave to appeal must be and is refused.

OTHER MATTERS

1. An additional problem arises in the current matter.  As the Application has been discontinued the Appellant Worker is no longer ‘a party to a dispute in connection with a claim for compensation’.  As this issue has not been the subject of any submissions and as it is not necessary for a decision to be made on it in order to dispose of the appeal, I make no comment on whether the named Appellant Worker has any standing to bring the current appeal.

DECISION

1. Leave to appeal is refused.

1. The decision of the Arbitrator dated 15 April 2005 is confirmed.

COSTS

1. No order is made as to the costs of the appeal.

Bill Roche

Acting Deputy President  

18 May 2006

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

ASSOCIATE