Zeng v Inset Group Australia Pty Ltd
[2004] NSWWCCPD 78
•12 November 2004
WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:Zeng v Inset Group (Aust) Pty Limited [2004] NSW WCC PD 78
APPELLANT: Owen Song Zeng
RESPONDENT: Inset Group (Aust) Pty Limited
INSURER:QBE Workers Compensation (NSW) Ltd
FILE NUMBER: WCC3828-03
DATE OF ARBITRATOR’S DECISION: 23 June 2004
DATE OF APPEAL DECISION: 12 November 2004
SUBJECT MATTER OF DECISION: Appeal Against an Order as to Costs
PRESIDENTIAL MEMBER: Dr Gabriel Fleming, Deputy President
HEARING:On the papers
REPRESENTATION: Appellant: Keddies Litigation Lawyers
Respondent: QBE Workers Compensation (NSW) Limited
ORDERS MADE ON APPEAL: Leave to appeal against the decision of the Arbitrator is refused.
THE APPEAL
On 25 June 2004, Owen Song Zeng sought leave to appeal against the decision of an Arbitrator, dated 23 June 2004.
The Respondent to the Appeal is Inset Group (Aust) Pty Limited, and the insurer is QBE Workers Compensation (NSW) Limited.
I am satisfied that I have sufficient information to proceed ‘on the papers’, pursuant to Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.
ISSUES IN DISPUTE
Mr Zeng states in the submissions dated 30 June 2004 that: “This Application is an Appeal Against a Decision of the Commission constituted by a Conciliator/Arbitrator that relates only to the issue of costs.”
Order 2 of the Arbitrator’s Orders is that there be an “Award in favour of the Respondent in respect to costs after the 22/3/04”.
Mr Zeng seeks an order that the Arbitrator’s decision as to costs be set aside, and in lieu, it be determined that Inset Group pay Mr Zeng’s costs of the proceedings.
Inset Group (Aust) has made no submissions on appeal.
LEAVE
Before proceeding to hear the appeal the Commission must determine whether the application meets the requirements of section 352 of 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 subsection 352(4) of the 1998 Act.
Mr Zeng must meet the threshold requirements of subsection 352(2) of the 1998 Act before leave can be granted.
Mr Zeng submits that section 352 of the 1998 Act is not applicable in this case as it is only applicable where there has been an order that concerns an amount of compensation. Mr Zeng instead submits that sections 353(1) and 353(4)(b) permit appeals to be heard where costs alone are in issue. In the alternative, he argues that the amount of costs in issue satisfy section 352(2) of the 1998 Act, as the costs exceed $5,000.
DISCUSSION AND FINDINGS
The Arbitrator provided brief reasons for the orders made and found that:
“The Applicant has made a frivolous claim without proper justification in respect to s67 and has delayed providing its acceptance by 13 weeks in respect to the Respondent [sic] offer to meet the s66 claim.”
Subsection 352(2) of the 1998 Act provides that “[T]he Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal” (emphasis added) is at least $5,000 and more than 20% of the amount awarded in the decision appealed against. There is no other section of the 1998 Act that allows a Presidential member to review a decision of an Arbitrator.
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] WCC PD 37; Stevan Mlinar v Goninan & Co Limited t/as Maintrain [2003] NSW WCC PD 39).
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. The application of the threshold requirements in subsection 352(2) of the 1998 Act is therefore not met. Leave to appeal is consequently refused.
DECISION
Leave to appeal against the decision of the Arbitrator is refused.
Dr Gabriel Fleming
Deputy President 12 November 2004
I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF DR GABRIEL FLEMING, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.
ASSOCIATE
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