State Rail Authority of NSW v Price
[2007] NSWWCCPD 24
•25 January 2007
WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:State Rail Authority of NSW v Price [2007] NSWWCCPD 24
APPELLANT: State Rail Authority of NSW
RESPONDENT: Rachel Price
INSURER:RailCover
FILE NUMBER: WCC3882-06
DATE OF ARBITRATOR’S DECISION: 29 August 2006
DATE OF APPEAL DECISION: 25 January 2007
SUBJECT MATTER OF DECISION: Leave to appeal costs order alone; error in awarding of costs in favour of Applicant whose claim did not succeed.
PRESIDENTIAL MEMBER: Deputy President Gary Byron
HEARING:Determined on the papers
REPRESENTATION: Appellant: Sparke Helmore Lawyers
Respondent: PK Simpson & Co
ORDERS MADE ON APPEAL: Leave to appeal is refused.
No order is made as to the costs of the appeal.
BACKGROUND
Ms Rachael Price, the Respondent Worker, was employed by the Appellant Employer, State Rail Authority of NSW (‘State Rail’), as a payroll officer. State Rail is insured by RailCover.
Ms Price commenced employment with State Rail on 1 July 2002. On 3 October 2004 she alleges that she suffered injury as a result of pulling open a heavy door at State Rail’s premises at Chippendale. She gave notice of the injury to her supervisor on 3 October 2004 and was certified unfit for work until 8 October 2004, by Dr Kathir.
On 8 October 2004 State Rail wrote to Ms Price stating that her injury notification had been assessed and her claim for weekly benefits and medical treatment would not be implemented, as “Your injury is not considered significant ie you are likely to be off work for less then [sic] 7 days”. Ms Price was certified unfit from 11 October to 14 October 2004 and did not return to her employment with State Rail. Ms Price commenced work with GV Jones and Associates, Melbourne on 18 October 2004.
On 9 February 2005 Ms Price lodged a claim for compensation with State Rail for injuries sustained on 3 October 2004 and claimed pains and aches to middle and upper back and twitching in the legs. Under cover of letter dated 14 July 2005, State Rail advised that following further investigation of her claim, liability was declined beyond 14 July 2005 and that pursuant to section 74 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), “Your claim has been declined pursuant to section 4 of the Workers Compensation Act 1987” (‘the 1987 Act’).
On 12 January 2006 Ms Price lodged a further claim with State Rail claiming compensation pursuant to section 60, section 66 and section 67 of the 1987 Act, alleging injury to her neck, right arm, left arm, back, right leg, left leg, and anxiety and /or depression as a result of the nature and conditions of her employment.
On 17 January 2006 State Rail wrote to Ms Price’s solicitors stating, “in view of specialist medical advice received, it is considered that Ms Price did not suffer any Whole Person Impairment associated with the injury date of 3 October 2004 and her employment with State Rail”.
On 14 March 2006 Ms Price lodged an ‘Application to resolve a Dispute’ (‘the Application’) in the Commission seeking weekly benefits compensation, reimbursement of expenses pursuant to section 60 of the 1987 Act , and compensation for permanent impairment and pain and suffering pursuant to sections 66 and 67 of the 1987 Act.
On 23 May 2006 a teleconference was held at which time Ms Price was referred to an approved medical specialist (‘AMS’) for assessment of permanent impairment.
On 29 June 2006 a Medical Assessment Certificate (‘MAC’) was issued with a finding of nil % whole person impairment.
On 2 August 2006 a further teleconference was held at which time the Arbitrator issued directions approving the application to admit late documents and requesting Ms Price to file and serve particulars of the expenses claimed pursuant to section 60 of the 1987 Act. The matter was set down for a further teleconference on 28 August 2006.
At the teleconference on 28 August 2006 the parties came to an agreed resolution of the issues in dispute in accordance with Rule 75(1) of the Workers Compensation Commission Rules 2003 (‘the 2003 Rules’) (now Rule 15.9(1) of the Workers Compensation Commission Rules 2006 (‘the 2006 Rules’)) and on 29 August 2006 the Arbitrator issued a ‘Certificate of Determination – Consent Orders’ (‘Determination’).
On 22 September 2006 State Rail lodged an ‘Appeal against Decision of Arbitrator’ with the Commission.
Ms Price has not responded and did not lodge a ‘Notice of Opposition to Appeal Against Decision of Arbitrator’ with the Commission.
On 27 September 2006 the Registrar wrote to State Rail referring to the fact that its appeal related solely to the Arbitrator’s award for costs and therefore no amount of compensation was at issue in the appeal. The Registrar invited attention to the Presidential decisions of Grimson v Integral Energy [2003] NSW WCC PD 29 and Borg v Garnville Pty Limited [2003] NSW WCC PD 30, and requested State Rail to advise the Commission by 4 October 2006 if it wished to proceed with the appeal.
On 3 October 2006 State Rail responded to the Commission stating that it would be relying on my decision in Roads and Traffic Authority v Warden [2004] NSWWCCPD 55. It also enclosed a Schedule of Costs and Disbursements in the amount of $9,138.79 submitted by Ms Price’s solicitor. State Rail submits that this is a substantial amount given that the Ms Price was unsuccessful in her claim for compensation, and further submits that “the laws of natural justice and procedural fairness would demand that the insurer be granted leave to appeal an Arbitrator’s erroneous decision to award costs under these circumstances”.
THE DECISION UNDER REVIEW
The Arbitrator’s ‘Certificate of Determination – Consent Orders’ dated 29 August 2006 records the following orders:
“1.That the Applicant’s claim for expenses under section 60 of the Workers Compensation Act 1987 be discontinued.
2.That the Respondent is not liable for the payment of the Applicant’s claim under section 66 of the Workers Compensation Act 1987.
3.That the Respondent pay the Applicant’s costs as agreed or assessed.”
ISSUES IN DISPUTE
The issue in dispute in the appeal is whether the Arbitrator:
·erred in the exercise of his discretion in ordering State Rail to pay Ms Price’s costs in circumstances where the worker was unsuccessful in her claim pursuant to section 66 of the 1987 Act, and discontinued the proceedings in respect of her claim for compensation pursuant to section 60 of that Act.
ON THE PAPERS REVIEW
Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (‘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.”
State Rail submits that the Appeal can be decided ‘on the papers’. Ms Price is silent on this issue, having not responded to the Appeal.
Having regard to State Transit’s submissions and documents that are before me, 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
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 Appeal was lodged on 22 September 2006, within 28 days of the Arbitrator’s decision, in compliance with section 352(4) of the 1998 Act.
Section 352(2) of the 1998 Act provides:
“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 in the decision appealed against.”
The appeal in the instant matter does not relate to an “amount of compensation” but solely to the order for costs made by the Arbitrator.
Section 352 has been considered by the Commission in several cases. In Robert Grimson v Integral Energy [2003] NSWWCCPD 29 (‘Grimson’) 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.”
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.” (See also paragraph 31, hereunder).
The threshold issue of leave to appeal in these circumstances has also been dealt with more recently by Acting Deputy President Roche (as he was then) in Sorbello v Yellamo Pty Ltd and ors [2006] NSWWCCPD 91; Hunter Area Health Service v Gilbey [2006] NSWWCCPD 136 and Holmes v Rodney S & Susan Cooper [2006] NSWWCCPD 281. In each case, Grimson has been followed on this issue.
State Rail relies on my decision in Roads and Traffic Authority v Warden [2004] NSWWCCPD 55 (‘Warden’) in relation to the granting of leave to appeal pursuant to Rule 77(3)(b) of the Workers Compensation Rules 2003 (now Rule 16.2(4) of the 2006 Rules). This decision concerned the award of costs by a delegate of the Registrar following determination of nil % whole person impairment for the purposes of section 66 of the 1987 Act. The Respondent Insurer appealed against the decision of the delegate to award costs to the Applicant when the Applicant was unsuccessful in recovering any compensation. State Rail refer specifically to [8] where I stated:
“Notwithstanding that the Appellant Employer states that the final assessment of costs and disbursements “will probably exceed $5,000”, as matters stand, the amount at issue on the appeal is not at least $5,000. In any event, the decision under review does not concern an amount of compensation but rather, an award of costs.”
Leave to appeal was not determined in Warden, and the appeal as such was also not determined. It is possible that this particular statement extracted from the decision in Warden could be misconstrued if read in isolation. However, it must be read in the context of the decision as a whole, and the subject matter of the decision. In its submissions on appeal State Rail did not make reference to my further, relevant discussion in Warden where I stated, inter alia:
“13.An order for costs does not concern an amount of compensation either in the appeal or in the original claim (Grimson v Integral Energy [2003] NSW WCC PD 29; Borg v Garnville Pty Limited [2003] NSW WCC PD 30; Benson v Integral Energy [2003] NSWWCC PD 37; Stevan Mlinar v Goninan & Co Limited t/as Maintrain [2003] NSW WCC PD 39). Where an appeal relates only to an issue of costs there is no dispute before the Commission, constituted by a Presidential Member, about an amount of compensation between the parties, as required by section 352(2) of the 1998 Act. In the circumstances leave to appeal would not have been granted, had the threshold issue required a determination.
14.I note further, that costs in the Commission do not follow the event but are in the discretion of the Commission pursuant to section 341(1) of the 1998 Act. However, a determination is not required in relation to this issue, either.
15. There is a more fundamental issue in this matter that relates to the validity of the Certificate of Determination purportedly issued by a delegate of the Registrar.”
The preliminary issue that I dealt in Warden was therefore, a fundamental issue as to jurisdiction in relation to section 375 of the 1998 Act. The orders contained in the ‘Certificate of Determination’ were issued by the Director of Professional Services, as a delegate of the Registrar. This purported delegation was invalid. Consequently, I found that the orders made were a nullity and I directed that the matter should be remitted to an Arbitrator to be determined properly. Given that the decision of the delegate was a nullity, there was nothing to appeal against. As I have said, the jurisdictional issue was a preliminary consideration and was not raised in the appeal brought by the Appellant Employer. I made it clear that the appeal as to the order for costs alone, made by the Arbitrator, would not have been determined in any event, for the reasons stated.
The position with regard to the circumstances of an appeal against an Arbitrator’s order for costs alone, such as in the instant matter, is summarized in [27] to [30] in Grimson:
“27.Granting leave to appeal an Arbitrator’s decision, regardless of whether it concerns an “amount of compensation”, by reference to that decision or the worker’s claim, is inconsistent with the plain words of the section. It is a general principle of statutory construction that all words in a statute are significant and should be given meaning and effect (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355).
28.An approach that gives little or no meaning to subsection 352(2) is also inconsistent with the clear intention of the legislature, and the purpose of the specific provision (section 352), namely to restrict the right of appeal from a decision of an Arbitrator to a Presidential Member (section 33 of the Interpretation Act 1987 provides that regard must be had to the purpose of an Act when interpreting its provisions).
29.This is not to say that the decision of an Arbitrator in relation to the costs of proceedings before them cannot be the subject of a review by a Presidential Member. Once the threshold test in subsection 352(2) is met, and other matters such as the time for filing of the appeal are addressed (352(4)), the whole of the decision of the Arbitrator is then properly the subject of review.
30.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 $5000, and, if a monetary award has ben made, (b) at least 20% of that award. The “…amount of compensation at issue on 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.”
In the present case the only issue to be determined on appeal is the costs order. There was no award dealing with the claim for compensation and, as a result, no ‘compensation’ is at issue on the appeal.
In their letter of 3 October 2006, the solicitors for State Rail submit, “… this is a substantial amount given that the worker did not succeed in her claim for compensation. It is also our submission that the laws of natural justice and procedural fairness would demand that the insurer be granted leave to appeal an Arbitrator’s erroneous decision to award costs under these circumstances.”
While the point made is understood, issues of natural justice and procedural fairness do not arise as submitted by State Rail’s solicitors, in circumstances where the applicable legislation prescribes the course that must be taken.
In the circumstances, leave to appeal must be refused.
DECISION
Leave to appeal is refused.
COSTS
Having regard to the circumstances of this matter and to the fact that Ms Price did not respond to the appeal, no order is made as to the costs of this appeal.
Gary Byron
Deputy President
25 January 2007
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF GARY BYRON, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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