Cowles v State Rail Authority of NSW and another

[2010] NSWWCCPD 115

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Cowles v State Rail Authority of NSW and another [2010] NSWWCCPD 115
APPELLANT:		Michael Kenneth Cowles
FIRST RESPONDENT:		State Rail Authority of NSW
SECOND RESPONDENT:	Uniting Church in Australia Property Trust (NSW) operating as Wesley Mission
FIRST RESPONDENT’S INSURER:		Allianz Australia Insurance Limited
SECOND RESPONDENT’S INSURER:	Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER:		A4-103/10
ARBITRATOR:	Ms E Grotte
DATE OF ARBITRATOR’S DECISION:		7 May 2010
DATE OF APPEAL DECISION:		3 November 2010
SUBJECT MATTER OF DECISION:		Leave to appeal out of time
PRESIDENTIAL MEMBER:		Deputy President Bill Roche
HEARING:		On the papers
REPRESENTATION:		Appellant:	Whitelaw MacDonald
First Respondent: Second Respondent:	SMK Lawyers Ellison Tillyard Callanan
ORDERS MADE ON APPEAL:		Leave to appeal is refused. Each party is to pay his or its own costs of the appeal.

BACKGROUND

1. The facts in this matter are identical to the facts in State Rail Authority of NSW v Cowles [2010] NSWWCCPD  114 (Cowles No 1) and will not be repeated. The appellant worker, Mr Cowles, was the successful respondent in Cowles No 1.

1. After receiving the appeal in Cowles No 1 on 30 June 2010, it was apparent that, as that appeal did not join Wesley Mission as a respondent or seek any relief that affected the award in favour of Wesley Mission, if State Rail’s appeal succeeded, Mr Cowles would be left without a remedy with respect to his rights against Wesley Mission.

2. In an appeal lodged on 4 August 2010, Mr Cowles sought leave to challenge the Arbitrator’s determination in favour of Wesley Mission.

ON THE PAPERS

1. Section 354(6) of the Workplace Injury Management and Workers Compensation Act 1998 (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.”

1. Contrary to his submissions in Cowles No 1, Mr Cowles has submitted that this appeal can be determined on the papers.

2. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submission by the appellant worker and Wesley Mission that the appeal can proceed to be determined on the basis of these documents, 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. 

LEAVE TO APPEAL

Monetary threshold

1. Before proceeding to deal with an appeal the Commission must determine whether the application meets the requirements of s 352 of the 1998 Act.

1. It is not disputed that the monetary thresholds in s 352(2) are satisfied.

Time

1. Mr Cowles lodged the current appeal on 4 August 2010, 89 days after the Arbitrator’s determination on 7 May 2010. As the award against State Rail satisfied the “appellant’s claim in its entirety”, it has been submitted on behalf of the worker that he had no interest in disputing the Commission’s findings in favour of Wesley Mission and did not do so. However, if State Rail’s appeal in Cowles No 1 were successful, Mr Cowles would be without a remedy against Wesley Mission.

2. It is apparent therefore that Mr Cowles filed the current appeal merely to protect his interests in the event that State Rail succeeded with its appeal in Cowles No 1. As State Rail’s appeal has failed and as Mr Cowles has not sought against Wesley Mission any additional or different relief to the relief he has already obtained against State Rail, the current appeal is otiose and to lose the right of appeal will not result in any injustice.

3. Leave to appeal is therefore refused.

DECISION

1. Leave to appeal is refused.

COSTS

1. Each party is to pay his or its own costs of the appeal.

Bill Roche
Deputy President

3 November 2010

I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF BILL ROCHE, DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE