Workers Compensation Nominal Insurer v Massoud - [2012] NSWWCCPD 62

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:			Workers Compensation Nominal Insurer v Massoud [2012] NSWWCCPD 62
APPELLANT:			Workers Compensation Nominal Insurer
FIRST RESPONDENTS:			Raymond Tannous Massoud and Antoine Massoud
SECOND RESPONDENT:		Adnan Al Othmani
FILE NUMBER:			A2-7269/09
ARBITRATOR:	Mr M Snell
DATE OF ARBITRATOR’S DECISION:			1 August 2012
DATE OF APPEAL DECISION:			31 October 2012
SUBJECT MATTER OF DECISION:			Application by Nominal Insurer for reimbursement of compensation from uninsured employer; application of principles in Raniere Holdings Pty Ltd v Daley [2005] NSWCA 121; 66 NSWLR 594; misconceived appeal lacking in substance; s 145 of the Workers Compensation Act 1987; interlocutory orders; ss 352(3A) and 354(7A) of the Workplace Injury Management and Workers Compensation Act 1998
PRESIDENTIAL MEMBER:			Deputy President Bill Roche
HEARING:			On the papers
REPRESENTATION:			Appellant:	DLA Piper Australia
First Respondents:	No appearance
Second Respondent:	Koutzoumis Lawyers
ORDERS MADE ON APPEAL:			The appeal is dismissed under s 354(7A) of the Workplace Injury Management and Workers Compensation Act 1998 as misconceived and lacking in substance. No order as to costs.

BACKGROUND

Adnan Al Othmani suffered serious back injuries when he fell from the roof of a pergola on 24 June 2006. As a result of his injuries, he is now a paraplegic. He claimed compensation from Raymond Massoud and Antoine Massoud. As the Massouds were uninsured, he also joined the Nominal Insurer to the proceedings.
His claim for compensation before Arbitrator Rimmer in the first arbitration was unsuccessful on the ground that he was not a worker or a deemed worker employed by the Massouds at the time of his fall. He successfully appealed that decision to an Acting Deputy President and the Court of Appeal upheld the Acting Deputy President’s decision. The Massouds were represented at, and took an active role in, the first arbitration but did not participate in either the appeal to the Acting Deputy President or the Court of Appeal.
As no orders had been made for the payment of compensation, the Commission listed the matter for teleconference before Senior Arbitrator Snell on 24 May 2012 to hear submissions on Mr Al Othmani’s entitlement to weekly, lump sum compensation and hospital and medical expenses. As Mr Al Othmani was overseas, the matter was adjourned until 28 June 2012. The Massouds did not participate in the teleconference and were not represented.
At the teleconference on 28 June 2012, the Nominal Insurer settled the claim and the Commission issued a Certificate of Determination – Consent Orders (the Consent Orders) on that day ordering the Nominal Insurer to pay weekly and other compensation, and costs, to and on behalf of Mr Al Othmani. The solicitor for the Nominal Insurer foreshadowed an application that it be reimbursed by the Massouds. The Massouds did not participate, either directly or through a solicitor, in the settlement and there is no evidence that they consented to it.
By letter dated 4 July 2012, the Nominal Insurer’s solicitor, DLA Piper Australia, applied…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NSWWCCPD 62
Decision Date: 31 October 2012

CaseChat Overview and Summary

The Workers Compensation Nominal Insurer applied for reimbursement of compensation paid to an employee from an uninsured employer. The application was made pursuant to s 145 of the Workers Compensation Act 1987. The matter was heard in the New South Wales Court of Appeal. The appeal was against an earlier decision of the Workers Compensation Commission, which had rejected the application. The Nominal Insurer sought an order that the appeal was not misconceived and should be allowed, and that the Commission's decision be set aside and replaced with a decision in its favour.

The primary legal issue before the Court was whether the appeal was misconceived and lacking in substance, and therefore not deserving of further consideration. The Court considered whether the appeal was frivolous or vexatious, and whether it had no reasonable prospect of success. The Court also considered the principles in Raniere Holdings Pty Ltd v Daley, which were relevant to the interpretation of s 145 of the Workers Compensation Act 1987. The Court noted that the application was a misconceived appeal that lacked substance and did not have a reasonable prospect of success.

The Court found that the appeal was misconceived and lacking in substance. The Court held that the principles in Raniere Holdings Pty Ltd v Daley applied, and that the application was frivolous and vexatious. The Court also noted that the appeal did not have a reasonable prospect of success, as the Commission's decision was based on a correct interpretation of the relevant legislation. The Court held that the appeal was an abuse of process and dismissed it under s 354(7A) of the Workplace Injury Management and Workers Compensation Act 1998.

No order as to costs was made.

Orders

Orders of the court

The appeal is dismissed under s 354(7A) of the Workplace Injury Management and Workers Compensation Act 1998 as misconceived and lacking in substance.

No order as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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