Star Entertainment Group Ltd v Antoniak
[2020] NSWWCCPD 46
•23 July 2020
| DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR | |
| CITATION: | Star Entertainment Group Ltd v Antoniak [2020] NSWWCCPD 46 |
| APPELLANT: | Star Entertainment Group Ltd |
| RESPONDENT: | Kabir Antoniak |
| INSURER: | Gallagher Bassett Services Pty Ltd |
| FILE NUMBER: | A1-4077/19 |
| ARBITRATOR: | Mr J Wynyard |
| DATE OF ARBITRATOR’S DECISION: | 9 October 2019 |
| DATE OF APPEAL DECISION: | 23 July 2020 |
| SUBJECT MATTER OF DECISION: | Monetary threshold required by s 352(3) of the Workplace Injury Management and Workers Compensation Act 1998 – Popovic v Liverpool City Council [2017] NSWWCCPD 49, Westpac Banking Corporation v Dinning [2019] NSWWCCPD 33, Corporate Management Services (Australia) Pty Ltd v Country Energy [2010] NSWWCCPD 5 discussed; Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSWWCCPD 3, Fletchers International Exports Pty Limited v Regan [2004] NSWWCCPD 7 applied |
| PRESIDENTIAL MEMBER: | Deputy President Elizabeth Wood |
| HEARING: | On the papers |
| REPRESENTATION: | Appellant: |
| Mr L Robison, counsel | |
| Hall & Wilcox | |
| Respondent: | |
| Mr C Tanner, counsel | |
| Masselos & Co Lawyers | |
ORDERS MADE ON APPEAL: | 1. The monetary threshold in s 352(3)(a) of the Workplace Injury Management and Workers Compensation Act 1998 is not satisfied, and there is no right of appeal. |
INTRODUCTION AND PROCEDURAL BACKGROUND
Mr Kabir Antoniak (the respondent) was employed by Star Entertainment Group Ltd (the appellant) as the restaurant manager of the Flying Fish restaurant. He commenced that employment on 6 November 2018.
The respondent described a number of stressors in the course of his employment, including a performance review on 9 February 2019. On 10 February 2019, the respondent notified the appellant that he was suffering from a psychological injury as a result of his employment and ceased work.
On 30 April 2019, the respondent lodged a notice of injury, citing as the cause of his injury the requirement to work long hours together with having undue stress placed on him by his immediate superior and the owner of the restaurant. On 22 May 2019, the appellant issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). The appellant accepted that the respondent had suffered a psychological injury pursuant to s 4 of the Workers Compensation Act 1987 (the 1987 Act) and that the respondent’s employment was a substantial contributing factor to the injury in accordance with s 9A of the 1987 Act. The appellant, however, declined liability for the injury on the basis of s 11A of the 1987 Act, alleging that the respondent’s injury was wholly or predominantly caused by reasonable action taken by the appellant in respect of performance appraisal and/or discipline.
The respondent commenced proceedings in the Commission, claiming weekly payments of compensation and treatment expenses pursuant to s 60 of the 1987 Act. The respondent alleged that his injury was caused by:
(a) bullying and harassment in the workplace;
(b) excessive work hours;
(c) an unfair performance review, and
(d) failure by the Director of Dining to:
(i)act on complaints about staff members and a part owner of the restaurant, and
(ii)follow up on policies and procedures recommended by the respondent.
The matter proceeded to arbitration on 3 October 2019. Arbitrator Wynyard delivered an ex tempore decision, ordering the appellant to pay the respondent’s s 60 expenses and directing the parties to file written submissions in respect of the claim for weekly payments of compensation by 11 October 2019. In a Certificate of Determination (COD) dated 9 October 2019, the Arbitrator confirmed the direction and the orders made.
Both parties complied with the direction to file written submissions in respect of the claim for weekly payments, however, on 14 October 2019, the respondent advised the Commission and the appellant by email that the claim for weekly payments was discontinued.
On 4 November 2019, the appellant filed an appeal from the decision of the Arbitrator in respect of the COD dated 9 October 2019.
It is apparent that the Arbitrator was not advised that the claim for weekly payments had been discontinued. The Arbitrator issued a further COD dated 5 December 2019, ordering the appellant to pay the respondent weekly compensation payments. That COD is not the subject of an appeal.
ON THE PAPERS
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.”
Both parties have indicated that they are content to have the matter determined on the basis of the documents and written submissions and that the matter does not require an oral hearing.
In their written submissions, neither party addressed the status of the COD dated 5 December 2019 or why the monetary threshold requirement in s 352(3)(a) of the 1998 Act was, or was not, satisfied. On 29 June 2020, I issued a Direction to the parties to provide submissions on both matters. The appellant filed its submissions on 8 July 2020 and the respondent filed his submissions on 15 July 2020.
I have had regard to Practice Directions Nos 1 and 6, the documents that are before me, the written submissions by the parties and the parties’ submissions 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.
THRESHOLD MATTERS
There is no dispute between the parties that the threshold requirement as to time pursuant to s 352(4) of the 1998 Act has been met.
The appeal lodged is against the Arbitrator’s COD issued on 9 October 2019, in which the Arbitrator ordered the appellant to pay the respondent’s treatment expenses pursuant to s 60 of the 1987 Act. The treatment expenses claimed in the Application to Resolve a Dispute (ARD) were expressed to be in respect of past expenses totalling $1,721.63 and the relevant receipts and invoices for those expenses were attached to the ARD. There was no claim made for future treatment expenses.
Section 352(3) of the 1998 Act imposes a two-limb monetary threshold which must be satisfied in order to appeal a decision of an arbitrator. It provides as follows:
“There is no appeal under this section 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.”
The appellant indicated in its appeal that there was no issue in relation to the requirement to satisfy the threshold to appeal and the respondent indicated that it did not “rely on threshold issues.”[1] The monetary value of the amount awarded in the COD dated 9 October 2019 (the COD appealed against) was less than $5,000.00. As neither party had made submissions about the requirement to satisfy subss 352(3)(a) and 352(3)(b), on 29 June 2020, I issued a direction that they each do so. I also directed the attention of the parties to the decision of Deputy President Roche in Corporate Management Services (Australia) Pty Ltd v Country Energy.[2] In the Direction, I also sought submissions from the parties as to the status of the COD issued on 5 December 2019, given that the weekly payments claim had been discontinued prior to the COD being issued.
The appellant’s submissions
[1] Respondent’s submissions, Part A, 2.2.
[2] [2010] NSWWCCPD 5 (Corporate Management Services).
The status of the COD dated 5 December 2019
The appellant submits that the COD dated 5 December 2019 is, on a prima facie basis, final and binding in accordance with s 350 of the 1998 Act and is not subject to appeal or review other than in accordance with the 1998 Act. The appellant submits that s 350(3) of the 1998 Act provides for a reconsideration of the decision, but that the respondent has not sought such a reconsideration. The appellant asserts that the COD remains on foot because there has been no such application made in respect of its status. The appellant says that the respondent has not sought a reconsideration despite the COD having been issued approximately seven months beforehand and in spite of the appeal being on foot since “shortly after the COD was issued.”[3]
[3] Appellant’s further submissions dated 30 June 2020, [4].
The appellant submits that a reconsideration is outside of the scope of an appeal to a Presidential member under s 352 of the 1998 Act, as the appellate jurisdiction is limited to the identification and correction of error of fact, law or discretion. The appellant points out that the Arbitrator was not provided with notice of the discontinuance of the weekly payments and, therefore, it could not be said that the Arbitrator erred in the manner required. The appellant says that in any event, no appeal is on foot asserting such error. The appellant submits that the COD, therefore, maintains its valid status.
The s 352(3) threshold
The appellant asserts that the requirement that the compensation at issue on the appeal is at least 20% of the amount awarded pursuant to s 352(3)(b) is clearly satisfied because the whole award is the subject of the appeal. The appellant further submits that the inclusion of the weekly payments dispute in this appeal squarely puts the quantum of the claim as greater than $5,000.00. The appellant points out that the respondent concedes that the threshold has been met and has taken no steps to disturb the COD issued on 5 December 2019.
The appellant refers to Corporate Management Services, in which it was held that because the monetary amount claimed ($390.85) was less than $5,000.00, the monetary requirement was not satisfied. The appellant submits that Corporate Management Services can be distinguished from this case because in this case, the weekly compensation remains on foot and, as pleaded, well exceeds $5,000.00. The appellant cites the amount claimed, which was $1,826.90 per week during the first 13 weeks of incapacity, and thereafter $1,538.45 per week.
The respondent’s submissions
The status of the COD dated 5 December 2019
The respondent asserts that it is obvious that at the time the Arbitrator drafted his decision and issued the orders which were the subject of the COD dated 5 December 2019, he was not aware that there was no dispute before him in relation to the weekly compensation. The respondent points to rule 15.7(1) of the Workers Compensation Commission Rules 2011 (the 2011 Rules), which provides that an applicant may discontinue any proceedings, or any part of any proceedings, at any time. The respondent says that he discontinued his claim for weekly payments on 14 October 2019, and thus, there was no issue before the Arbitrator to determine. The respondent submits that the COD dated 5 December 2019 was therefore incompetent and the determination was erroneous so that the COD should be revoked by the Arbitrator or the Registrar. The respondent indicates that he intended to make such a request to the Registrar.
The respondent adds that the COD is, in any event, not relevant to these proceedings because the appeal is from the COD dated 9 October 2019, and not the subsequent COD. The respondent points out that, at the time the appeal was lodged, there was no claim for weekly payments capable of determination. The respondent submits that the administrative oversight which led to the “incompetent” COD being issued, cannot have a bearing on the appeal lodged one month previously. The respondent adds that the COD does not assist the appellant in overcoming the monetary threshold pursuant to s 352(3) of the 1998 Act.
The s 352(3) threshold
The respondent submits that the appellant lodged its appeal against the decision date 9 October 2019 on 4 November 2019, at which time the claim for weekly payments had been discontinued. The respondent asserts that the “amount of compensation at issue on the appeal” was therefore limited to the award in the respondent ‘s favour pursuant to s 60 of the 1987 Act. The respondent says the quantum of the claim pursuant to s 60 was $1,721.63, in accordance with the invoices attached to the ARD. The respondent asserts that it follows that the amount of compensation at issue on the appeal is less than the required threshold of $5,000.00.
The respondent refers to the decision of Westpac Banking Corporation v Dinning,[4] in which I determined that the monetary threshold was not met and says that this case is similar. The respondent submits that the reasoning in Dinning would indicate that this appeal cannot proceed. The respondent adds that in Corporate Management Services, Roche DP confirmed that future treatment expenses were not “compensation” in dispute in that matter and were not relevant to the quantum to be considered under s 352(3) of the 1998 Act.
[4] [2019] NSWWCCPD 33 (Dinning).
CONSIDERATION
I note that on 14 July 2020, the respondent wrote to the Commission requesting the COD to be reconsidered by either the Registrar or an arbitrator.
I accept the submissions of both parties that the status of the COD is not a matter for my consideration. The current appeal is limited to a challenge to the COD issued by the Arbitrator dated 9 October 2019 and there is no appeal on foot in respect of the COD dated 5 December 2019. As the appellant submits, a decision of an arbitrator is not subject to appeal or review other than in accordance with the 1998 Act. The Presidential member’s power to intervene is limited by s 352(5) of the 1998 Act to the determination of whether the Arbitrator’s decision was affected by error of fact, law or discretion and the correction of such error. In the absence of an appeal being lodged in respect of the COD dated 5 December 2019, I do not have jurisdiction to determine its status.
In order to bring this appeal, the appellant must establish that the monetary threshold pursuant to s 352(3)(a) of the 1998 Act has been met. The appellant submits that the respondent conceded in its Opposition to the Appeal Against Decision of Arbitrator that the threshold has been met. Whether the respondent made that concession (which in any event was subsequently withdrawn in the respondent’s further submissions) is immaterial. There is no discretion to permit the conduct of an appeal where the monetary threshold has not been satisfied.[5]
[5] Patrick Operations Pty Ltd v Watson [2013] NSWWCCPD 18, [13].
Section 352 of the 1998 Act was extensively amended by the Workers Compensation Legislation Amendment Act 2010 (the 2010 amendments) and the current provisions apply to decisions of arbitrators on and from 1 February 2011. Prior to the 2010 amendments, the requirement to meet the monetary threshold was set out in s 352(2) of the 1998 Act. As s 352(2) was expressed in identical terms to s 352(3) as it now appears, the pre-2011 authorities dealing with the former s 352(2) are equally applicable to the issues relating to the monetary threshold pursuant to the current s 352(3).[6]
[6] Re Alcan Australia Limited; Ex parte Federation of Industrial Manufacturing and Engineering Employees [1994] HCA 34; 181 CLR 96; 68 ALJR 626; 123 ALR 193.
The threshold requirements of s 352(3) (formerly s 352(2)) have been considered in a number of appeals in the Commission.
In Sheridan v Coles Supermarkets Australia Pty Limited,[7] the injured worker claimed weekly payments and treatment expenses, quantified by the Arbitrator as a total amount of $3,736.46. The worker had also been assessed by Dr Alan Hopcroft, orthopaedic surgeon, as suffering from 10% permanent impairment pursuant to s 66 of the 1987 Act. Dr Hopcroft’s report was in evidence, but a lump sum was not claimed in the proceedings before the Arbitrator. Relevantly, the Arbitrator found in favour of the respondent and there was no amount awarded. The appellant worker submitted that the amount in issue was $9,736.00, which included the amount of $6,000.00 in respect of the 10% permanent impairment. Deputy President Fleming observed:
“The amount of compensation at issue on the appeal must be determined by reference to the amount of compensation at issue in the proceedings before the Arbitrator at first instance. The Application to Resolve a Dispute does not identify an amount of $6000.00 for a 10% permanent impairment of the Applicant’s back as being in dispute. On any reading of the Arbitrator’s statement of reasons for decision it is clear that he was not considering any such claim.
At most, the amount of compensation at issue on the appeal is the total of the claim before the Arbitrator, $3736.46, less the amount awarded to the Applicant for medical expenses, $558.80.”[8]
[7] [2003] NSWWCCPD 3 (Sheridan).
[8] Sheridan, [16]–[17].
Deputy President Fleming also considered the monetary threshold in Fletchers International Exports Pty Limited v Regan,[9] in which she observed that the decision must have a real capacity to put the amount of compensation in issue, determined by reference to the decision or the claim. The general purpose and policy of the provision is to require a certain monetary threshold to be met, that is, there is ‘an amount in issue.’
[9] [2004] NSWWCCPD 7 (Regan), [27].
In Popovic v Liverpool City Council,[10] Ms Popovic claimed weekly payments of compensation and treatment expenses in the sum of $5,000.00 (without supporting accounts or receipts). At the arbitration, Ms Popovic discontinued her claim for weekly payments, and amended the claim pursuant to s 60 to a “general order” with no specific amount expressed.
[10] [2017] NSWWCCPD 49 (Popovic).
President Judge Keating said:
“Mrs Popovic submits that the threshold issue should be decided in her favour because of the way in which the case was pleaded. Namely, that an amount of $5,000 was pleaded in the Application as the amount sought in compensation. I do not accept that submission. It is apparent that Mrs Popovicabandoned that claim on the first day of the hearing. The matter proceeded before the Arbitrator on the basis that only a general order was sought in respect of medical and hospital expenses. There was no particularisation of the extent of the medical expenses sought to be recovered.”[11]
And:
“It follows that the reference to a claim for ‘$5,000’ pleaded in the Application is not decisive of whether the monetary threshold has been satisfied. What is decisive is the way in which the Application was run and decided, namely, on the basis of a claim for a general order for medical expenses rather than a claim for any quantified sum.”[12]
[11] Popovic, [25].
[12] Popovic, [28].
The respondent relies on Dinning. In that case, the appellant brought proceedings in the Commission in respect of a continuing claim for weekly payments of compensation at the rate of $1,500 per week from 21 April 2017, and ongoing treatment expenses pursuant to s 60 of the 1987 Act, claimed as “$2,000 plus Medicare notice of charge”. A schedule of s 60 expenses dated 7 November 2017 was annexed to an Application to Admit Late Documents (AALD) filed by the respondent on the same date, which particularised the amount of s 60 expenses totalling $1,710.54. At the arbitration, the worker withdrew the claim for weekly payments thereby limiting the claim to what it referred to as a “general order” for treatment expenses pursuant to s 60 of the 1987 Act. I determined that the amount the appellant was required to pay in satisfaction of the order made by the Arbitrator was limited to the respondent’s treatment expenses, particularised as totalling $1,710.54 and the monetary threshold had not been met.
In this case, the appeal brought by the appellant is from the decision of the Arbitrator recorded in the COD dated 9 October 2019.
The appellant submits that the inclusion of the weekly payments dispute in this appeal squarely puts the quantum of the claim as greater than $5,000.00. The only compensation awarded by the Arbitrator in the COD dated 9 October 2019 was in respect of the respondent’s treatment expenses pursuant to s 60 of the 1987 Act, particularised as an amount of past expenses totalling $1,721.63. At the time of the issuing of the COD, the respondent’s entitlement to weekly compensation was in issue but before the appeal was lodged by the appellant, the claim for weekly compensation was discontinued. As Fleming DP observed in Regan and in Sheridan, the decision must have a real capacity to put in issue on the appeal the amount of compensation, determined by reference to the decision or the claim.
Rule 15.7 of the 2011 Rules relevantly provides:
“15.7 Discontinuance
(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.
(2) The applicant and any other party to any proceedings may agree to the discontinuance of the proceedings (or any part of the proceedings) as against that other party at any time.
(3) A discontinuance referred to in subrule (1) or (2) takes effect when a notice of the discontinuance, stating the limits (if any) of the discontinuance, is lodged and served on all parties to the proceedings who are not parties to the discontinuance.”
On 11 December 2019, a delegate of the Registrar emailed the appellant requesting the appellant to advise whether the appellant was aware that the respondent had discontinued the claim for weekly payments prior to the COD being issued on 5 December 2019. The appellant replied on 12 December 2019, indicating that:
“On Monday 14 October 2019 the applicant purportedly withdrew the claim for weekly payments. However, the decision on the claim made by the applicant had been delivered on 3 October 2019. Therefore, the dispute was determined before 14 October 2019. The respondent (appellant employer) does not agree that the claim for weekly payments was withdrawn prior to the determination issued on 3 October 2019.”
The COD issued on 9 October 2019 was in the following terms:
“The determination of the Commission in this matter is as follows:
1. I direct the parties to lodge and serve submissions as to weekly payments by 11 October 2019.
2. I grant leave to the parties to approach on telephone notice to each other in that regard.
3. The respondent will pay the applicant’s s 60 expenses upon production of accounts, receipts and/or HIC Notice of Charge.
4. I will deliver a decision regarding the weekly payments in accordance with direction 1 above.
5. I decline to exercise my discretion pursuant to s 289A(4) to permit the respondent to raise issues of injury pursuant to s 4, substantial contributing factor pursuant to s 9A and main contributing factor pursuant to s 4(b) in accordance with the reasons given in my ex tempore orders.
6. I grant leave to the respondent to rely upon the part of its Part 3 statement in its Reply that allege ‘the respondent disputes the rate of weekly compensation claimed by the applicant’.
7. I reject the issues raised in Nos. 1, 5 and 6 of Part 3 of the Reply noting that item 7 has already been raised in the respondent’s s 78 notice of 7 January 2019.” (emphasis in original)
It is apparent from the above document that the Arbitrator had yet to determine the issue in relation to the claim for weekly payments when he issued his ex tempore orders on 3 October 2019, which were confirmed in the COD dated 9 October 2019. I note that the appellant did not dispute receiving the notification from the respondent on 14 October 2019 that the claim for weekly payments was withdrawn. The respondent merely disputed that the claim was discontinued prior to 3 October 2019, when the Arbitrator made his initial findings in relation to the claim for treatment expenses pursuant to s 60 of the 1987 Act and the various interlocutory decision and directions.
It is not disputed before me that the respondent provided notice to the Commission and the appellant on 14 October 2019 that he discontinued his claim for weekly payments. In accordance with Rule 15.7(3), the discontinuance took effect from that date, which was before the appellant lodged this appeal and before the Arbitrator delivered his decision in respect of the weekly payments. In those circumstances it cannot be said, therefore, that the amount of weekly payments claimed but not on foot when this appeal was lodged is part of the amount in issue on this appeal in accordance with s 352(3)(a) of the 1998 Act. Such a conclusion is consistent with the observations and conclusions reached in Sheridan, Regan, Popovic, Corporate Management Services and Dinning, discussed above.
The appellant submits that Corporate Management Services can be distinguished from this case because in this case, the weekly compensation remains on foot. I do not accept that submission. The weekly payments claim was clearly discontinued before the appeal was lodged and what remained was an amount of compensation in respect of treatment expenses which were below the threshold. The decision in Corporate Management Services is therefore not distinguishable from this case.
It follows that the threshold requirement in s 352(3)(a) of the 1998 Act has not been met and there can be no appeal from the decision of the Arbitrator dated 9 October 2019.
DECISION
The monetary threshold in s 352(3)(a) of the Workplace Injury Management and Workers Compensation Act 1998 is not satisfied, and there is no right of appeal.
Elizabeth Wood
DEPUTY PRESIDENT
23 July 2020
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