Surgenor v Cenehill Pty Limited t/as Rocks Real Estate

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

CITATION:	Surgenor v Cenehill Pty Limited t/as Rocks Real Estate [2004] NSW WCC PD 4
APPELLANT:	Catherine Surgenor
RESPONDENT:	Cenehill Pty Limited t/as Rocks Real Estate
INSURER:	CGU Workers Compensation (NSW) Limited
FILE NO:	WCC7161-2003
DATE OF ARBITRATOR’S DECISION:	5 September 2003
DATE OF APPEAL DECISION:	23 January 2004
SUBJECT MATTER OF DECISION:	Application for leave to appeal against a decision of an Arbitrator. Workplace Injury Management and Workers Compensation Act 1998, section 4 “deemed worker”, section 5 “deemed employment”, Schedule 1.
PRESIDENTIAL MEMBER:	Deputy President Dr Gabriel Fleming
HEARING:	On the Papers
REPRESENTATION:	Appellant: Higgins and Higgins, Solicitors
Respondent: Nevill and Edwards, Solicitors
ORDERS MADE ON APPEAL:	The decision of the Arbitrator is confirmed.

THE APPEAL

On 7 October 2003 Catherine Surgenor, (‘the Appellant’), 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 Respondent to the appeal is Cenehill Pty Limited t/as Rocks Real Estate (‘the Respondent’), and the Insurer is CGU Workers Compensation (NSW) Limited (‘the Insurer’).
Ms Surgenor’s claim relates to an injury to her thumb, hip and back sustained when she fell in a shower recess while cleaning a residential property that was managed by the Respondent. She subsequently made a claim for payments of weekly benefits compensation. This claim was denied on the basis that Ms Surgenor was not a ‘worker’ as defined in the Workers Compensation Acts.
Ms Surgenor’s legal representatives first lodged an application in the Compensation Court of NSW in 2002, however this application was not proceeded with as the Court did not have jurisdiction over the dispute. The application should have been made to the Commission, which it duly was, on 15 January 2003.
The Respondent filed a ‘Reply to the Appeal’ and submissions on 21 October 2003, and further submissions on 23 October 2003.
The appeal is against the decision of an Arbitrator, contained in the Certificate of Determination issued by the Commission on 5 September 2003, as follows:
1. That the Applicant is not a ‘worker’ or a ‘deemed worker’ (in deemed employment) under the relevant provisions of the WIMWCA, including Schedule (sic).
2. No order as to costs.
A brief statement of reasons for the determination was attached.
The Appellant submits the following grounds of appeal:
(i)The Arbitrator erred in finding the Applicant was not a worker.
(ii)The Arbitrator erred in inferring that the Applicant was conducting a business merely because the Respondent “imposed no restrictions upon her carrying out such work for others”.
(iii)The Arbitrator erred as there was no evidence that the Applicant was in fact conducting a business or carrying out cleaning work for others.
(iv)That the Arbitrator findings in paragraph 37 did not provide the evidence to permit the finding therefrom (sic) in paragraph 38.
(v)The Arbitrator failed to properly exercise his powers pursuant to Section 354 of the Workplace Injury Management Act (sic) by requiring the production of information necessary to permit a relevant finding.
The Respondent submits that the Arbitrator considered all of the relevant issues and determined the matter on the basis of the evidence before him, therefore the decision should be confirmed.
The appeal was referred to me for review on 28 November 2003.

THE ISSUES IN DISPUTE

The issues in dispute in the appeal may be summarised as follows:
(i)Should an extension of time for the filing of the appeal be granted?
(ii)Should leave be granted to the Appellant to file fresh evidence in the appeal?
(iii)Did the Arbitrator err in finding that the Applicant was not a worker?

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 Arbitrator’s decision was made on 5 September 2003 and the Certificate of Determination was issued on the same day. The appeal was not lodged within 28 days of that decision, i.e. on or before 3 October 2003, in compliance with section 352(4) of the 1998 Act. The appeal was lodged 32 days after the decision was made. The Appellant has sought an extension of time for the filing of the appeal, pursuant to Rule 77(8) and (9) of the Workers Compensation Commission Rules 2003 (‘the Rules’).
The Appellant provided no substantive submissions as to why time should be extended, save to state that the decision was received on 8 September 2003, Counsel’s advice was obtained on 3 October 2003, and the appeal was made by ‘letter dated 3 October 2003’. The appeal was not received in the Registry until 7 October 2003 (see Rule 77 (7)).
The Respondent makes no submissions on the issue of extension of time for the filing of the appeal.
Despite the paucity of submissions as to why time should be extended I am of the view that it is fair and reasonable to do so. The filing of the appeal was only a few days late and the Respondent has not been disadvantaged in any way. The importance of the substantive issues in dispute warrant leave to appeal out of time being granted.
The Appellant claims that the amount of compensation at issue on the appeal is greater than $5,000 because “the Applicant has a potential right under Sections 66, 67, 38, 40 and 60 that on any view exceed $5,000.00”. The Respondent states that it “ . . . does not dispute that potentially the amount in issue could be more than $5000.00 if it is accepted the Applicant is a ‘worker’”.
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 (Ingram v Norco Co-operative Limited [2003] NSW WCC PD 1). In circumstances where the Arbitrator’s decision did not involve the making of a monetary award, but was nonetheless a ‘decision’ as defined in section 352(8) of the 1998 Act, it is possible to determine the amount of compensation at issue by reference to the amount of the claim particularised in the Application lodged in the Commission’s proceedings.
The original ‘Application to Resolve a Dispute’ identified the matter that was before the Commission as a dispute over payment of weekly benefits compensation from 12 January 2002 to date. The application sought a ‘General Order’ for unspecified medical expenses and it was noted “[l]iability denied for claim generally. Lump sums may be claimed when conditions permanent and liability resolved”. There is no evidence that a claim for permanent impairment compensation has ever been made upon the Respondent. A dispute about compensation for permanent impairment cannot be referred to the Commission unless the claim has been made on the relevant person and has been denied (section 289(3) of the 1998 Act). An amount of compensation that may be claimed by a worker, but that has not in fact been claimed and is not a matter in dispute before an Arbitrator, is not an ‘…amount of compensation at issue on the appeal’ for the purpose of the application of section 352(2) of the 1998 Act (Sheridan v Coles Supermarkets Australia Pty Limited [2003] NSW WCC PD 3).
Ms Surgenor was employed by Rocks Real Estate to clean residential holiday properties from time to time. In the period 5 July 2001 to 29 January 2002 her total payment for this work was $1,122.40, including sundry payments for cleaning items. On the basis of this level of payment continuing to the present, the amount in dispute is over $5,000.

DETERMINATION OF LEAVE TO APPEAL

Leave to appeal is granted.

FRESH EVIDENCE AND ON THE PAPERS REVIEW
Fresh Evidence

The Appellant’s representative simply submits that additional evidence from Ms Surgenor herself should be permitted, “ . . . to specifically address the issues raised by the Arbitrator”. The Respondent objects to the filing of fresh evidence by the Appellant.
Fresh or additional evidence may only be given on an appeal with the leave of the Commission (s. 352(6) of the 1998 Act). Practice Direction No. 6 details how such an application for leave must be made, as follows:
New Evidence
Where a party seeks leave to give ‘fresh evidence or evidence in addition to or in substitution for the evidence received’ (‘new evidence’) in relation to the decision appealed against, the party must serve a copy of the new evidence on the other parties to the dispute when serving the ‘Application for Leave to Appeal Against an Arbitrators Decision’ or the response to the application.
The party seeking to rely upon new evidence must also file in the Commission and serve on the other parties:
·a statement attesting to the service of the new evidence on the other parties to the dispute,
·a brief outline of the new evidence and the reasons why it was not given in proceedings before the Arbitrator, and
·submissions as to why the new evidence should be admitted.
The Appellant has not complied with Practice Direction No. 6.
Principles relevant to the exercise of the discretion to admit fresh evidence in appellate proceedings have often been considered by the courts. These principles were discussed in relation to proceedings before the Commission in the matter of Ross v Zurich Workers Compensation Insurance [2002] NSW WCC PD 7. Factors weighing in favour of the exercise of discretion to admit fresh evidence in the appeal include: whether, if the request is refused, a substantial injustice will result to the party who seeks to have the evidence admitted, whether the evidence could not have been discovered, with reasonable diligence, at the time of the original proceedings, and whether the evidence is of such probative value that there is a high degree of probability that it would lead to a different outcome in the case.
Factors weighing against the exercise of the discretion to admit fresh evidence in the appeal include: the interest in the finality of litigation and the importance of the ability of the successful party to rely on the outcome of the proceedings, the prejudice, if any, that may result to the other party, particularly if the fresh evidence raises new arguments in the appeal, and the intention of the legislative scheme in relation to the nature of the proceedings. In some cases the introduction of fresh evidence will effectively raise new arguments in the appeal (Litynski v Albion Steel Pty Ltd (1994) 10 NSWCCR 287). It is undesirable, and potentially unfair, to allow a party to effectively present a new and different case on appeal, to that which was before the primary decision-maker (Coulton v Holcombe (1986) 162 CLR 1).
The Rules require an Applicant to the Commission to “lodge and serve with the application to resolve a dispute all information and documents on which the applicant proposes to rely and that are in the possession or control of the applicant at that time” (Rule 38(1)). Attached to Ms Surgenor’s ‘Application to Resolve a Dispute’ were: a statement signed by her on 25 October 2002, copies of relevant correspondence with the Insurer and a Workcover Medical Certificate. No submissions were filed on the critical issue in dispute, namely whether Ms Surgenor was a ‘worker’ under the Workers Compensation Acts. This is despite the fact that the Insurer had denied liability on that ground as early as 14 March 2002. The application did not identify any documents upon which the Applicant intended to rely, but did not yet have in her possession.
A telephone conference was held on 5 June 2003 and the Arbitrator gave directions, with the consent of the parties, which allowed both parties further time (over four weeks) to file submissions on the issue of liability. The Applicant was directed to file submissions by 10 July 2003 but breached this direction and filed submissions only on 7 August 2003. Despite this lateness the Arbitrator accepted the Applicant’s submissions and took them into account in making his decision.
The Arbitrator further directed, again with the consent of the parties, that the issue of liability would be determined ‘on the papers’ without the need for a formal hearing.
The Appellant had ample opportunity during the arbitral proceedings, to file all the evidence upon which she relied. That evidence should, in any event, have been filed with the original application to the Commission. The Appellant was on notice of the issues in dispute well before the matter came before the Commission and had time to prepare and file all relevant evidence.
The nature of the new evidence has been described in only the vaguest terms as referring ‘. . . to the specific matters raised by the Arbitrator’. It is therefore not possible to claim with certainty that it would, or would not, be of such probative value that a different decision might result if it were admitted. However the Appellant was well aware of the issues referred to the Arbitrator. Any failure to put specific matters before the Arbitrator rests with the Appellant, who consented to the Arbitrator determining this critical issue of liability on the basis of the documents that he had before him. There is no substantial injustice to the Appellant in refusing to allow, on appeal, further evidence of those matters that could, with reasonable diligence, have been discovered and submitted in the original proceedings. There would be a substantial injustice to the Respondent in now permitting the Appellant to introduce further evidence.
The intention of the legislative scheme in relation to Commission proceedings is that parties be able to obtain a final and binding resolution of their dispute by way of a conciliated agreement or by an order of an Arbitrator. The limitation on appeals from decisions of Arbitrators is an indication of this. In this matter the Respondent is entitled to rely upon the Arbitrator’s decision based on the evidence that was before him, and should not be expected to meet a new case on appeal. The Respondent would clearly be disadvantaged in relation to the appeal in that it may be forced to obtain evidence in reply.
I am not satisfied that any grounds exist for the admission of fresh evidence in the appeal and consequently I do not grant leave for it to be admitted.
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.
The Appellant submits that “the Appeal should be dealt with by oral submissions due to its complexity on questions of law and its significance generally on procedure where an Arbitrator requires additional evidence to make a relevant finding”.
The Respondent submits that the appeal should be determined on the papers.
In my view the issue is not as complex as the Appellant submits. The determination of whether a person is a ‘worker’ under the Workers Compensation Acts is one upon which there is much authority. These authorities were widely canvassed in the recent decision of Deputy President Byron in Zhao v Monlea Pty Ltd t/a Nordex Interiors [2003] NSWWCC PD 11. Ultimately the decision as to whether a person is a ‘worker’ will turn on the facts of the individual case.
The parties made written submissions on the issue to the Arbitrator and these submissions clearly set out their respective positions. The submissions are before me on appeal. The Appellant has filed a statement of the ‘Grounds of Appeal’ but has not complied with Practice Direction No. 6, which requires the Appellant to file, among other things:
· written submissions detailing why leave should be granted to review the decision and detailing the appealing party’s view as to the correct decision.
Having regard to the submissions that have been made by both parties to the Arbitrator 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.

EVIDENCE AND SUBMISSIONS

The Appellant’s evidence before the Arbitrator was contained in a statement by Ms Surgenor, dated 25 October 2002, copies of correspondence with the Insurer and a WorkCover medical certificate dated 15 January 2002. Ms Surgenor’s uncontradicted evidence of her working arrangements with Rocks Real Estate may be summarised as follows:
·Ms Surgenor worked for the Respondent on a casual basis for approximately six to eight months prior to injuring herself in January 2002. The employment was variable depending upon the season. She did not work for anyone else during this time.
·She cleaned holiday units managed by the Respondent and was paid $15 per hour, with a minimum of two hours per unit. She registered her own name as a business name and received an ABN, which was quoted on her invoices for the work, and given to the Respondent.
·Ms Surgenor provided the cleaning equipment. She billed the Respondent for items such as toilet rolls and laundry.
·In January 2002 she fell when cleaning and injured her neck, back, left hip and left hand Since this accident she has been unable to work for the Respondent.
The Appellant submits that she was a ‘worker’ as that term is defined in the Workers Compensation Acts and that the Respondent employed her as a ‘worker’ in the relevant period.
The Respondent filed copies of Ms Surgenor’s tax invoices for the relevant period, a copy of the employer’s report of the injury dated 25 March 2003, medical reports and a statement by Mr Popple, Director of Rocks Real Estate, dated 19 March 2003.
The Respondent submits that Ms Surgenor was an independent contractor and not a ‘worker’ as that term is defined in the Workers Compensation Acts.
Mr Popple stated that the Respondent engaged up to 20 or 30 persons as cleaners for holiday rentals that it managed. They were engaged on behalf of the owners and were paid from the client’s trust account. No tax was deducted nor superannuation payments made on the cleaners behalf. The cleaners were advised to submit invoices quoting an ABN. Mr Popple claims that the business was advised by the Australian Tax Office, about ten years ago, that contract cleaners engaged under this arrangement were not considered employees, but contractors. The Respondent did not require evidence of workers compensation or public liability insurance, as these matters were left up to the cleaners themselves. Mr Popple states that the cleaners were not supervised by the Respondent or the owners of the properties, nor were any specific instructions given as to the day to day conduct of the activities. The standard of cleaning was required to be satisfactory to the clients and the work was monitored from time to time to ensure that standards were met.

DISCUSSION AND FINDINGS

Section 4 of the 1998 Act sets out the definition of “worker” as follows:
“worker means a person who has entered into or works under a contract of
service or training contract with an employer (whether by way of manual
labour, clerical work or otherwise, and whether the contract is express or
implied, and whether the contract is oral or in writing). However, it does not
include:
(a) a member of the Police Service who is a contributor to the Police Superannuation Fund under the Police Regulation (Superannuation) Act 1906, or
(b) a person whose employment is casual (that is for 1 period only of not more than 5 working days) and who is employed otherwise than for the purposes of the employer’s trade or business, or
(c) an officer of a religious or other voluntary association who is employed upon duties for the association outside the officer’s ordinary working hours, so far as the employment on those duties is concerned, if the officer’s remuneration from the association does not exceed $700 per year, or
(d) except as provided by Schedule 1, a registered participant of a sporting organization (within the meaning of the Sporting Injuries Insurance Act 1978) while:
(i)participating in an authorized activity (within the meaning of that Act) of that organization, or
(ii)engaged in training or preparing himself or herself with a view to so participating, or
(iii)engaged on any daily or periodic journey or other journey in connection with the registered player so participating or the registered participant being so engaged,
if, under the contract pursuant to which the registered participant does any of the things referred to above in this paragraph, the registered participant is not entitled to remuneration other than for the doing of those things.”

Provision is made for deemed employment of workers in Schedule 1 of the 1998 Act. The relevant provision put by the Appellant is Clause 2, which provides, in part:
“2 Outworkers and other contractors
(1)     Where a contract:
(a)     to perform any work exceeding $10 in value (not being work incidental to a trade or business regularly carried on by the contractor in the contractor’s own name, or under a business or firm name), or
(b)     to perform any work as an outworker,
is made with the contractor, who neither sublets the contract nor employs any worker, the contractor is, for the purposes of this Act, taken to be a worker employed by the person who made the contract with the contractor.”
The determination of whether a person is a ‘worker’ under these provisions requires a consideration of the totality of the evidence of the nature of the relationship between the parties (Hollis v Vabu Pty Ltd (2001) 207 CLR 21). There may be a number of relevant indicia, including the degree of control over the work that is exercised by the employer, the nature of the business relationship between the parties, the skills required for the work, the degree of supervision and the financial arrangements between the parties. Deputy President Byron discussed the relevant law on this issue in the matter of Zhao v Monlea Pty Ltd t/as Nordex Interiors [2003] NSWWCC PD 11).
In this matter the Arbitrator properly identified the critical issue in dispute. The finding that Ms Surgenor and Rocks Real Estate had entered into a contractual relationship whereby Ms Surgenor carried out certain cleaning work is not in dispute. The Arbitrator properly referred to the “critical evidence . . of the statements of the Applicant [Ms Surgenor] and Mr Popple” in determining the totality of the relationship between the parties.
The Arbitrator expressly considered the degree of control Ms Surgenor had over her work. While the Arbitrator’s written reasons are brief, they nonetheless set out his conclusion that:
“…there was virtually no supervision of the Applicant by the Respondent in the performance of cleaning work at various properties managed by the Respondent. There was, in my opinion, no control in the sense of whether the engagement subjected the Applicant to the command of the Respondent as to how she would perform her cleaning work.”
The evidence before the Arbitrator was that Ms Surgenor required no supervision to carry out the cleaning work on the units and that she was entirely in charge of determining what had to be done, and how. The nature of the business relationship between the parties was such that Ms Surgenor had a great deal of autonomy in her work, and in her billing practices with the Respondent.
The Arbitrator expressly refers to the evidence of the financial arrangements between the Appellant and the Respondent, in particular the arrangements for payment, including the provision of an ABN number and the method of invoicing the work. While the Arbitrator’s findings on these matters would have benefited from more express reasoning, I am satisfied that he considered the evidence and the factors relevant to the question of whether Ms Surgenor was a ‘worker’, under the workers compensation legislation. There is no error disclosed in the Arbitrator’s reasoning and findings on this question.
Based on the weight of the evidence, I am satisfied that the Arbitrator was entitled to conclude, on the balance of probabilities, that the Appellant was an independent contractor conducting her own business as a cleaner, and was therefore not a ‘worker’ within the meaning of that word in the 1998 Act.
The issue of whether Ms Surgenor was in ‘deemed employment’ in accordance with Schedule 1, Clause 2 of the 1998 Act, turns on the question of whether she was carrying on “work incidental to a trade or business regularly carried on by [her] in [her] own name, or under a business or firm name”.
The Arbitrator considered the evidence on this issue (at paragraphs 30-38 of the reasons) and concluded that there was no evidence “that indicates the Applicant was not performing work as a cleaner within her cleaning business at 12 January 2002”. I do not accept the Appellant’s submission that the Arbitrator came to this conclusion “merely because the Respondent imposed no restrictions on carrying out such work”. The Arbitrator also considered the actual work Ms Surgenor did, the length of time that she had been undertaking that work (reasons paragraph 34), the fact that she worked solely for the Respondent, that she had obtained an ABN, and that she issued invoices to the Respondent under the ABN (reasons paragraph 35).
Having reviewed the evidence I am satisfied that the Arbitrator properly considered the factors relevant to whether Ms Surgenor was a ‘deemed worker’ under the 1998 Act and that there was sufficient evidence upon which the Arbitrator could make a finding that she in fact was not a ‘deemed worker’.
The Appellant’s final ground of appeal alleges an error by the Arbitrator in failing “to properly exercise his powers pursuant to Section 354 of the Workplace Injury Management Act (sic) by requiring the production of information necessary to permit a relevant finding.” As noted above the Appellant has not filed written submissions on this ground of appeal, as required by Practice Direction No. 6.
Section 354 provides as follows:
354   Procedure before Commission
(1)    Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2)    The Commission is not bound by the rules of evidence but may inform itself on any matter in such manner as the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3)    The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
(4)    Proceedings need not be conducted by formal hearing and may be conducted by way of a conference between the parties, including a conference at which the parties (or some of them) participate by telephone, closed-circuit television or other means.
(5)    Subject to any general directions of the President, the Commission may hold a conference with all relevant parties in attendance and with relevant experts in attendance, or a separate conference in private with any of them.
(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.
(7)    An assessment or determination is to be made by the Commission having regard to such information as is conveniently available to the Commission, even if one or more of the parties to the assessment or determination proceedings does not co-operate or ceases to co-operate.
(8)    In proceedings before a court with respect to a claim for work injury damages (other than proceedings under section 235A or 235C or under the Crimes Act 1900 with respect to fraud), evidence of a statement made in proceedings before the Commission is not admissible unless the person who made the statement agrees to the evidence being admitted.
It is curious for the Appellant to claim that the Arbitrator failed to require the production of evidence upon which relevant findings could be made. There is nothing in section 354 which requires an Arbitrator to dictate to a party the evidence which that party is to put before the Arbitrator, nor that requires an Arbitrator to make a party’s case. As noted above, the Appellant in this matter had ample opportunity to file all evidence and submissions that she considered relevant to the dispute. The Appellant also consented to the Arbitrator then determining the matter on the basis of the documents that were before him.
The Arbitrator was satisfied that he had enough evidence upon which to make a determination. This is a matter of discretion, to be exercised lawfully and reasonably, in accordance with the requirements of procedural fairness in the instant case. I can see no error in the conduct of this matter by the Arbitrator in relation to this ground of appeal and thus it must fail.

DECISION

The decision of the Arbitrator is confirmed.

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:

[2004] NSWWCCPD 4

23 January 2004