Wilson v GIO Australia Ltd
[2005] NSWWCCPD 40
•18 May 2005
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Wilson v GIO Australia Ltd
[2005] NSWWCCPD 40
APPELLANT: Kathy May Wilson
RESPONDENT: GIO Australia Ltd
INSURER:GIO General Limited
FILE NUMBER: WCC 6418-03
DATE OF REGISTRAR’S DECISION: 26 October 2004
DATE OF APPEAL DECISION: 18 May 2005
SUBJECT MATTER OF DECISION: Registrar’s determination of costs; Agreeement to Discontinue; otiose appeal.
PRESIDENTIAL MEMBER: President Justice Terry Sheahan
HEARING:On the papers
REPRESENTATION: Appellant: MRM Solicitors
Respondent: Hicksons Lawyers
ORDERS MADE ON APPEAL: 1. The appeal is otiose.
2. Appeal dismissed.
3. No order is made as to costs.
THE APPEAL
On 5 November 2004 Ms Kathy Wilson (‘the Appellant Worker’) sought leave to bring an ‘Appeal from [the] Registrar’s Determination on Costs’ (‘The Appeal’) in the Workers Compensation Commission (‘the Commission’) against a decision, dated 26 October 2004.
The Respondent to the Appeal is GIO Australia Ltd (‘the Respondent Employer’).
The Registrar delegated the assessment of costs to an Arbitrator pursuant to section 371(2) of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’).
THE DECISION UNDER REVIEW
The Certificate of Determination of Applicant’s Costs, dated 26 October 2004 records the Registrar’s orders as follows:
“The Registrar determines that:
1.Pursuant to a registered Agreement dated 20 June 2003 the Respondent employer is liable to pay the Applicant’s costs as agreed or assessed.
2.The Applicant’s costs of the proceedings are assessed at $1061.50.
3.The Applicant’s costs of the assessment are not allowed.
4.The Respondent is to pay the amount of $1061.50 to the Applicant if the costs have not already been paid.”
JURISDICTION
Part 19 of the Workers Compensation Regulations 2003 (‘the Regulations’) provides for the assessment and determination of ‘costs’ in matters before the Commission.
Pursuant to clause 119 (1):
“A party to an application who is dissatisfied with a decision of the Registrar as to a matter of law arising in the proceedings to determine the application may, in accordance with the Rules of the Commission, appeal to the Commission constituted by a Presidential member against the decision.”
Pursuant to clause 119(3):
“After deciding the question the subject of the appeal, the Commission constituted by a Presidential member may, unless it affirms the Registrar’s decision:
(a) make such determination in relation to the application as, in its opinion should have been made by the Registrar, or
(b) remit its decision on the question to the Registrar and order the Registrar to re-determine the application”
The nature of the appeal against a Registrar’s determination of costs is not set out in the Workers Compensation Act 1987, the 1998 Act or in the Workers Compensation Rules 2003. The Regulations alone confer jurisdiction on the Presidential Member to review the Registrar’s decision “as to a matter of law”.
Clause 119 of the Regulations does not confer jurisdiction on the Presidential Member to revoke the Registrar’s decision and enter fresh orders unless the Presidential Member makes a determination that the orders made by the Registrar were affected by legal error.
Jurisdiction cannot be conferred on the Presidential Member by the consent of the parties.
ON THE PAPERS REVIEW
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.”
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.
SUBMISSIONS, REASONS AND FINDINGS
The Appellant Worker’s submissions are contained in the “Grounds of Appeal” in the Application and are to the following effect:
(i)The Registrar by her delegate failed to record the reasons why the Appellant Worker made a concession in relation to item 1.01. The Appellant Worker submitted the reasons were articulated in paragraph 2 of the submissions in reply dated 23 July 2004. The Appellant Worker seeks leave to amend the error pursuant to Clause 117 of the Regulations or alternatively seeks leave to appeal the Registrar’s decision pursuant to clause 119 of the Regulations.
(ii)The Registrar erred in determining that the heading in Part 2A of the costs schedule means that the reports must be “commissioned or initiated” “on behalf of the claimant”.
(iii)The Registrar by her delegate made a number of errors in the interpretation and application of item 2.04 as follows:
·erred in finding that “obtained and reviewed” meant that the reports must be “commissioned or initiated” “ on behalf of the claimant”.
·erred in finding that the words “obtained and reviewed” meant that the worker must have “commissioned” the reports,
·erred in finding that item 2.04 did not relate to reports obtained from the insurer or the employer,
·erred in finding that “the seeking out of ‘other reports’, not commissioned or initiated on behalf of the claimant, is not a requisite event or activity for the purpose of item 2.04…”,
·erred in failing to apply ‘the test’ in item 2.04, being that the reports were “obtained” and “reviewed” and
·failed to take into account earlier decisions in relation to the interpretation of item 2.04, namely William Rogers v Skilled Trade Solutions Pty Ltd (WCC 17089-03, 24 March 2004) and Craig Trevor Brown v Commonwealth Steel Company Ltd (WCC 10344-04,10 September 2004).
(iv)The Registrar by her delegate also erred in finding that “item 2.02 was the only item relevant to the task of obtaining and reviewing medical reports from the insurer” and “that the task of ‘reviewing’ reports obtained from the insurer was recoverable under item 2.02.”
The Respondent Employer lodged submissions with the Commission on 2 December 2004. In those submissions the Respondent Employer referred to submissions made by the Appellant Worker to the Registrar dated 23 July 2004, accepting and confirming the Respondent Employer’s submissions in relation to item 1.01.
I note the Appellant Worker’s submissions dated 23 July 2004 expressly state “[T]he Appellant does not require the Commission to make any orders in relation to item 1.01 other than to note the agreement”.
The Respondent Employer quite rightly, in my opinion, submitted that as a consequence, appeal ground (i) in paragraph 13 above is irrelevant.
In relation to item 2.04 the Respondent Employer submitted “[i]n respect of item 2.04, the Respondent accepts that William Rogers v Skill Trade Solutions Pty Limited, Craig Trevor Brown v Commonwealth Steel Company Limited, and Kevin Ross Ship v Fletcher International Exports Pty Limited are authorities for the Appellant’s proposition that she is entitled to an amount of $600.00 in respect of item 2.04.”
The Respondent Employer further submitted that:
(i)the appeal in respect of item 2.04 be allowed,
(ii)the Respondent Employer pay the Appellant Worker $600.00 in relation to item 2.04, and
(iii)the Respondent Employer pay the Appellant Worker’s costs of the appeal.
On 15 December 2004 the Appellant Worker’s solicitor notified the Commission that “[t]he parties have resolved the matter.”
The Appellant Worker’s solicitor under cover of letter dated 18 January 2005 confirmed the Appellant agreed with the proposed orders set out in the Respondent Employer’s submissions (see paragraph 18 above). The Appellant Worker’s solicitor also informed the Commission, that “[w]e do not wish to withdraw the appeal and respectfully submit that the orders ought to be that the appeal be allowed in relation to item 2.04.”
On 15 March 2005 the parties filed an ‘Agreement to Discontinue Proceedings’ which stated:
“The parties agree that these proceedings in respect of the Applicant’s Application for Assessment of Costs be discontinued on 8 March 2005.
The parties have agreed to the following terms for the discontinuance of proceedings and request the Commission to determine these proceedings by making orders accordingly:
1.Appeal in relation to item 2.04 allowed.
2. Respondent to pay item 2.04 in the sum of $600.00
3. Respondent to pay the appellant’s costs of the appeal.”
The ‘Agreement to Discontinue Proceedings’ filed by the parties confirming their agreement that the Respondent Employer pay the Appellant Worker $600.00 under item 2.04 (the primary subject of this appeal), and pay the Appellant Worker’s costs of the appeal, together with the parties’ submissions that they are also in agreement in relation to item 1.01, makes this appeal otiose, i.e. it no longer serves a purpose.
DECISION
Appeal dismissed.
COSTS
I make no order as to costs.
OTHER
Whilst the Regulations do not confer jurisdiction on the Presidential Member to enter consent orders, the parties are at liberty to apply to the Registrar for a formal reconsideration of the Registrar’s decision, in accordance with the following terms of their Agreement to Discontinue Proceedings:
·the Respondent to pay item 2.04 in the sum of $600.00
·the Respondent to pay the Appellant’s costs of the appeal.
Justice Terry Sheahan
President
18 May 2005
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUSTICE TERRY SHEAHAN, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
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