Stevan Mlinar v Goninan & Co Limited t/as Maintrain
[2003] NSWWCCPD 39
•17 December 2003
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
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| CITATION: | Stevan Mlinar v Goninan & Co Limited T/as Maintrain [2003] NSWWCCPD 39 |
| APPELLANT: | A Goninan & Co. Limited T/as Maintrain |
| RESPONDENT: | Stevan Mlinar |
| INSURER: | A Goninan & Co. Limited T/as Maintrain |
| FILE NO: | WCC 8089 - 2003 |
| DATE OF ARBITRATOR’S DECISION: | 5 September 2003 |
| DATE OF APPEAL DECISION: | 17 December 2003 |
| SUBJECT MATTER OF DECISION: | Application for Leave to appeal against a decision relating only to costs, threshold issues, section 352(2) of the 1998 Act |
| PRESIDENTIAL MEMBER: | Deputy President, Dr Gabriel Fleming |
| HEARING: | On the Papers |
| REPRESENTATION: | Appellant: Cantle Carmichael Lawyers |
| Respondent: Beston Macken McManis | |
| ORDERS MADE ON APPEAL: | Leave to appeal against the decision of the Arbitrator is refused. |
THE APPEAL
On 2 October 2003 A Goninan & Co Limited (‘the Appellant Insurer’), lodged an ‘Application for Appeal Against a Decision of an Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision dated 5 September 2003. The other party to the appeal is Stevan Mlinar (‘the Respondent Worker’).
Submissions were filed by the Appellant Insurer on 2 October 2003, and the Respondent Worker on 12 November 2003. The appeal was registered in the Commission on 31 October 2003.
The appeal concerns an order that the Appellant Insurer pay the costs of the original proceedings, as agreed or assessed, following an award in its favour.
The matter was referred to me for review on 28 November 2003.
The Appellant Insurer seeks orders that the Arbitrator’s decision as to costs be set aside, and in lieu, it be determined that each party bear their own costs of the proceedings, including the costs of the Appeal.
The Respondent Worker seeks that the Appeal be dismissed and the Appellant ordered to pay the Respondent Worker’s costs of the appeal.
ON THE PAPERS REVIEW
Section 354(6) of the 1998 Act provides:
354 Procedure before Commission
(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 agree that the matter can be determined on the papers.
Having regard to President’s Direction Number 1 of 2002, the submissions that have been made by both parties, and the 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 of this matter.
JURISDICTION TO HEAR THE APPEAL
Before proceeding to hear the appeal the Commission must determine whether the application meets the requirements of section 352 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), as follows:
352Appeal 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.
(8)In this section, decision includes an award, interim award, order, determination, ruling and direction.
The Appeal was lodged within 28 days of the Arbitrator’s decision in compliance with section 352(4) of the 1998 Act.
Whether the Appellant Insurer can meet the threshold requirements of section 352(2) of the 1998 Act is in dispute as the decision under review only concerns an award of costs.
The Appellant Insurer submits that the Arbitrator erred in law in that she failed to exercise her discretion as to costs pursuant to section 341 of the 1998 Act. She further misdirected herself in holding that the Commission is not bound by the conventions of other jurisdictions that ‘costs follow the event’.
The Appellant Insurer also submits that the Arbitrator misdirected herself in holding that the Respondent Worker acted reasonably in testing his claim in the Commission on the evidence available to him at the time of commencement of his claim.
The Respondent Worker submits that leave to appeal should not be granted as the “...amount of compensation at issue is less than $5,000.00 and less than 20% of the amount awarded in the decision appealed against.”
The Respondent Worker further submits that the Arbitrator properly exercised her discretion pursuant to section 341(2) of the 1998 Act. There is also nothing to suggest that the original application was “...unreasonably brought.”
DISCUSSION AND FINDINGS
In the substantive proceedings, the Respondent Worker was unsuccessful in his claim and an award was made in favour of the Employer, who was also ordered to pay the costs of the Worker in those proceedings. The Arbitrator found that the Worker had failed to comply with a workplace injury management plan and was therefore disentitled to weekly benefits compensation. The appeal is against the costs order only.
Section 352(2) of the 1998 Act provides that the “the Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal” is at least $5,000 and more than 20% of the amount awarded in the decision appealed against.
An order for costs does not concern an amount of compensation either in the appeal or in the original claim (Benson v Integral Energy [2003] WCC PD 37, Grimson v Integral Energy [2003] NSW WCC PD 29, Borg v Garnville Pty Limited [2003] NSW WCC PD 30). In the circumstances where the appeal relates only to an issue of costs, there is no dispute before the Commission about an amount of compensation between the parties.
When there is effectively no amount of compensation in dispute between the parties, the application of the threshold requirements in subsection 352(2) of the 1998 Act is not met. Therefore, I do not have the jurisdiction to hear the appeal.
DETERMINATION OF LEAVE TO APPEAL
Leave to appeal against the decision of the Arbitrator is refused.
COSTS
The appeal has been unsuccessful and costs fall to be determined in accordance with section 345 of the 1998 Act. That section provides, relevantly, that:
345Costs penalties where appeal unsuccessful
(1)On an appeal from the Commission constituted by an Arbitrator to the Commission constituted by a Presidential member:
(a) if the appellant is the claimant and is unsuccessful on the appeal, the Commission must not make an order for the payment of the appellant’s costs on the appeal by any other party to the appeal, or
(b) if the appellant is an insurer (other than a licensed insurer that maintains a statutory fund under the 1987 Act) and is unsuccessful on the appeal, the Commission may order the insurer to pay to the Authority for payment into the WorkCover Authority Fund an administration fee of $1,000 or such other amount, as may be prescribed by the regulations.
(2)If the appellant in any such appeal is a licensed insurer that maintains a statutory fund under the 1987 Act and is unsuccessful on the appeal:
(a) the insurer’s costs on the appeal, and
(b) the costs of any other party to the appeal that the insurer is ordered to pay,
are not to be paid out of the statutory fund.
(3)If an appeal concerns lump sum compensation, weekly payments of compensation or medical expenses compensation, the appellant is considered to be unsuccessful on the appeal unless the decision on appeal results in a change in favour of the appellant in the amount awarded or ordered to be paid in the decision appealed against of at least $5,000 (or such other amount as may be prescribed by the regulations) and at least 20% of the amount awarded or ordered to be paid.
(4)An administration fee that an insurer is ordered to pay is recoverable as a debt due to the Authority.
(5)The Registrar is to notify the Authority of an order to an insurer under this section to pay an administration fee.
The Parties are urged to come to an agreement as to costs in accordance with the above provisions.
Dr Gabriel Fleming
Deputy President
I certify that that this is a true and accurate record of the reasons for decision of Deputy President, Dr Gabriel Fleming, Workers Compensation Commission.
Registrar Date:
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