SPL Pty Ltd t/as ITW Proline v Oliver
[2009] NSWWCCPD 54
•19 May 2009
| WORKERS COMPENSATION COMMISSION | |||||
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |||||
| CITATION: | SPL Pty Ltd t/as ITW Proline v Oliver [2009] NSWWCCPD 54 | ||||
| APPELLANT: | SPL Pty Ltd t/as ITW Proline | ||||
| RESPONDENT: | Phillip Oliver | ||||
| INSURER: | QBE Workers Compensation (NSW) Ltd | ||||
| FILE NUMBER: | A1-8378/08 | ||||
| ARBITRATOR: | Mr R. Whitelaw | ||||
| DATE OF ARBITRATOR’S DECISION: | 7 January 2009 | ||||
| DATE OF APPEAL DECISION: | 19 May 2009 | ||||
| SUBJECT MATTER OF DECISION: | Costs; Section 341 Workplace Injury Management and Compensation Act 1998 | ||||
| PRESIDENTIAL MEMBER: | Deputy President Kevin O’Grady | ||||
| HEARING: | 13 May 2009 | ||||
| REPRESENTATION: | Appellant: | Mr S Marsh, instructed by McCulloch & Buggy Lawyers | |||
| Respondent: | Mr J McGuire, instructed by Slater and Gordon Lawyers | ||||
| ORDERS MADE ON APPEAL: | Leave to appeal the Arbitrator’s decision dated 7 January 2009 is refused. | ||||
| Paragraph 2 of the Arbitrator’s decision dated 7 January 2009 is confirmed. | |||||
| No order as to costs of this appeal. | |||||
BACKGROUND
The Appellant (‘the Employer’) has sought leave to appeal against orders made by an Arbitrator in Certificate of Determination dated 7 January 2009. By reason of the circumstances summarised hereunder the matter was listed for hearing (‘the hearing’) before the Commission on 13 May 2009 to determine any entitlement of the Respondent (‘the Worker’) to costs of the proceedings before the Arbitrator and of this appeal.
The Worker’s claim against the Employer arises from a severe injury received in the course of his employment on 11 August 2006. The Worker sustained, among other injuries, injury to both lower limbs. Those injuries have necessitated prolonged treatment including operative procedures to both limbs.
In 2008 proceedings were commenced in the Commission by the Worker seeking orders for lump sums in respect of the injury to his left leg. Those proceedings were discontinued on 15 October 2008 at which time it was noted by the Arbitrator that such discontinuance was “by agreement”. That the Employer agreed to the discontinuance of those proceedings was confirmed by its Counsel during the course of the hearing.
On 21 October 2008 the Worker commenced proceedings in the Commission seeking orders identical to those sought in the earlier discontinued proceedings.
That second Application to Resolve a Dispute (‘the Application’) came before an Arbitrator at a teleconference on 8 December 2008 when directions were made with respect to the filing of written submissions and a direction was made that the matter would subsequently be heard “on the papers”.
Submissions were filed on behalf of each party. The Employer argued that the claim, being in respect of one injury only (the left leg), should be dismissed having regard, in particular, to section 65(2) of the Workers Compensation Act 1987 (‘the 1987 Act’) and section 322(2) and (3) of the Workplace Injury Management and Workers compensation Act 1998 (‘the 1998 Act’). A Certificate of Determination accompanied by the Arbitrator’s Statement of Reasons issued on 7 January 2009.
On a date which has not been disclosed but which, I assume, post dated the Arbitrator’s determination the worker agreed to settle proceedings at common law which he had commenced against a third party arising from the circumstances of his injuries. He has received damages and hence has no further right to compensation (section 151Z of the 1987 Act). Thus there is no compensation at issue between the parties and leave to appeal must be refused (section 252(2) of the 1998 Act’).
ORDERS MADE BY THE ARBITRATOR
The Certificate of Determination dated 7 January 2009 records the Arbitrator’s orders as follows:
“The Commission determines:
1.That this matter be remitted to the Registrar for referral to an Approved Medical Specialist in respect of the Applicant's claim for Whole Person Impairment relating to his left lower extremity.
2.That the Respondent pay the Applicant's costs as agreed or assessed.”
THE EMPLOYERS APPEAL AND SUBSEQUENT EVENTS
By an appeal filed in the Commission on 3 February 2009, the Employer sought leave to appeal against the Arbitrator’s decision. That appeal had submissions in support attached.
On 4 March 2009 the Worker filed with the Commission his submissions in opposition to the Employer’s appeal.
On 1 May 2009 the Worker filed with the Commission a document headed “Election to Discontinue Proceedings” (‘the election’). That document included the statement:
“This is the approved form to notify of Discontinuance of Proceeding in accordance with Rule 15.7(1) of the Workers Compensation Commission Rules 2006.”
Part 2 of the document stated:
“The Applicant hereby discontinues these proceedings.
The Applicant seeks an order that the Respondent pay the Applicant’s costs of the proceedings and the appeal.”
Following the filing of the Worker’s election the Commission listed the matter for oral hearing for the purpose of presenting argument concerning entitlement to costs.
Each party prepared and filed written submissions with respect to the costs applications made by the Worker. Those submissions remain with the Commission’s papers.
At the hearing the Worker was represented by Mr McGuire, Solicitor and the Employer was represented by Mr Marsh of Counsel. The parties representatives supplemented the written submissions with oral argument.
SUPPLEMENTARY SUBMISSIONS MADE AT HEARING
The Worker’s submissions in support of his application seeking an order for costs of both the proceedings and the appeal are briefly summarised below:
(a) the Worker’s claim was brought in accordance with the legislation following the making of a valid claim;
(b) any delay to the claim was occasioned by the Employer’s conduct;
(c) earlier proceedings commenced by the Worker were discontinued by consent, and
(d) progress of the common law action was influenced by uncertainty concerning listing for hearing in Nowra and by the unknown future conduct of the Defendants (Argument as to indemnity and possibility of appeal).
The Employer’s submissions resisting the costs orders sought by the Worker and in support of its own application for costs may be briefly summarised as follows:
(a) delay complained of by Worker was occasioned by the Worker’s discontinuance of proceedings in 2008;
(b) the Employer was entitled to resist the claim (section 65(2) of the 1987 Act and section 322(2) and (3) of the 1998 Act);
(c) the Worker, in proceeding with an independent common law action, ran the risk that such action would be finalised before the workers compensation proceedings had been concluded. In that event, the Worker is not entitled to costs;
(d) the workers compensation proceedings were commenced without proper justification given that settlement was known to the Worker’s solicitors to be “imminent”, and
(e) the Arbitrator’s cost order had been ‘overtaken by events’ and has, by reason of the appeal, been ‘set aside’.
DISCUSSION AND FINDINGS
The Worker’s purported “discontinuance” of proceedings followed, it seems, an agreement concerning settlement of the common law proceedings which the Worker had commenced. The Commission was informed by the Worker’s representative at the hearing that, whilst formal orders had not apparently been entered in accordance with the agreement, the Worker has received damages as agreed. It appears also that, as at the date of the hearing, the Employer had received an indemnity in respect of all payments made to or on behalf of the Worker pursuant to the 1987 Act.
Rule 15.7(1) of the Workers Compensation Commission Rules 2006 (‘the Rules’) provides:
“(1)An applicant may discontinue any proceedings, or any part of any proceedings, as against any or all of the other parties to the proceedings, at any time.”
Whilst the election document was accepted for filing by the Commision I conclude, having regard to all circumstances, that such filing was of no effect. The relevant circumstances are that there had been a determination and orders made by the Arbitrator in respect of the Worker’s Application. Those orders were the subject of challenge on appeal instituted by the Employer and I am of the view, the Employer being the moving party in the appeal, that nothing in the Act or the Rules permits discontinuance of the appeal proceedings by the Worker.
Notwithstanding the terms of Rule 15.7 (in particular 15.7(1)) I am of the view that once there is a determination made by an Arbitrator in proceedings, any order made remains standing unless revoked or otherwise affected by order on appeal brought pursuant to section 352 of the 1998 Act or by way of reconsideration (section 350(3) of the 1998 Act). I note that in the course of submissions I expressed the tentative view to Counsel for the Employer that the Arbitrator’s order concerning costs remains extant. As above summarised that proposition was not accepted by Counsel and argument that supported that rejection was advanced.
The Worker having recovered damages is thus barred from recovery of any further compensation and is liable to repay out of those damages that compensation which has been paid. It is the Employer’s submission that, in those circumstances, “… the current proceedings can no longer be maintained”.
Notwithstanding the Employer’s assertion that “the current proceedings can no longer be maintained” an order is sought in the appeal that the Worker be ordered to pay the Employer’s costs “associated with the proceedings and the appeal”. It may be seen that the question of costs remains the only outstanding matter raised on behalf of the Employer in this appeal given the operation of section 151Z of the 1998 Act.
As noted in [11] above the Worker has sought a costs order concerning the appeal in the document filed which purports to discontinue the proceedings. That application was reiterated before the Commission at the hearing. Given the circumstance that the only matters outstanding between the parties concern entitlement to costs, the Employer’s Application for leave to appeal must be refused.
That refusal must be made because, as stated at [7] above, there being no amount of compensation at issue given the operation of section 151Z, the threshold requirements of section 352(2) of the 1998 Act have not been met. It is unnecessary to consider the questions raised by a consideration of the provisions of section 352(8) of the 1998 Act which prevents an appeal being brought from a decision which is of an interlocutory nature. It is however clear on the authorities that the Order challenged is one of an interlocutory nature within the meaning of that sub-section and no appeal lies (see Filippou v Northern Sydney Central Coast Area Health Service (Manly Hospital) [2009] NSWWCCPD 35).
Resolution of competing costs application
The Worker, in my view, retains the benefit of the costs order made in his favour by the Arbitrator at the conclusion of the proceedings brought with respect to his Application. I am of the view that no order should be made disturbing that extant order. I so conclude notwithstanding the broad discretion granted by the terms of section 341 of the 1998 Act with respect to cost orders. The position would be otherwise had the Worker agreed to settle his common law proceedings before the Arbitrator’s decision. The Worker was entitled to bring the claim which was the subject of determination by the Arbitrator, he was successful in respect of that application and was thus entitled to an order for costs upon the fundamental principle that costs follow the event. It follows that the Employer’s application made with regard to those costs must be refused.
With respect to the costs of this appeal the Worker seeks an order in his favour. That application is opposed by the Employer and reliance has been placed upon the decision of Truss CCJ (as she then was) in Hodson v Scott transport Industries Pty Ltd (1994) 10 NSWCCR 19 (‘Hodson’). In that matter a Worker/Applicant sought an order for costs against an Employer/Respondent in proceedings commenced in the former Compensation Court. The Worker had commenced concurrent proceedings against a tortfeasor which proceedings had been settled on a compromise basis which made provision for receipt by the Applicant Worker of damages. The Court in Hodson declined to exercise its discretion in favour of the Applicant Worker with respect to an award of costs. It was stated by Her Honour:
“I have not been persuaded that I should exercise my discretion in favour of the applicant. She elected to commence proceedings in two jurisdictions in relation to the same injury. In doing so, she accepted the risk that the common law proceedings could be determined first and become a legal bar to the proceedings in this Court.”
In the present matter the Worker’s common law proceedings have been settled and damages received by him during, it seems, the currency of an appeal brought by the Employer. Whilst it is true that the Worker has incurred costs by reason of the institution of the appeal by the Employer and that it is arguable that such appeal had no merit, the Employer is entitled to pursue any remedy on appeal that he may be advised. I accept the argument put on behalf of the Employer that the attendant risks referred to by her Honour in Hodson extend to the contingency of an appeal and the necessity to defend those proceedings. In the circumstances I decline the order concerning costs as sought by the Worker.
With respect to the Employer’s application for costs on the appeal I refuse such application in the exercise of my discretion pursuant to section 341(4) of the 1998 Act. Circumstances in which costs orders will be made against workers are limited as prescribed by that section and I am not satisfied that the Employer has made out any ground upon which it could be argued that such an order against the Worker was appropriate in the circumstances.
Having regard to the matters outlined above I conclude that there should be no order as to costs of this appeal.
The order made by the Arbitrator in paragraph 1 of his decision has been negated by events and the operation of section 151Z of the 1987 Act.
DECISION
Leave to appeal the Arbitrator’s decision dated 7 January 2009 is refused. I confirm paragraph 2 of the Arbitrator’s decision.
COSTS
No order as to costs of this appeal.
Kevin O’Grady
Deputy President
19 May 2009
I, MARIE JOHNS CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF KEVIN O’GRADY, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
0
1
0