Deeks v Harmer Steel Erection Pty Ltd

[2004] NSWWCCPD 49

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR

CITATION:Deeks v Harmer Steel Erection Pty Limited [2004] NSW WCC PD 49

APPELLANT:  Glen Deeks

RESPONDENT:  Harmer Steel Erection Pty Limited

INSURER:GIO Workers Compensation (NSW) Ltd

FILE NUMBER:  WCC13535-03

DATE OF ARBITRATOR’S DECISION:          19 February 2004

DATE OF APPEAL DECISION:  10 August 2004

SUBJECT MATTER OF DECISION:                Appeal Against an Order as to Costs

PRESIDENTIAL MEMBER:  Dr Gabriel Fleming

HEARING:On the papers

REPRESENTATION:  Appellant:  Taylor and Scott

Respondent:  Phillips Fox

ORDERS MADE ON APPEAL:  Leave to appeal against the decision of the Arbitrator is refused.

THE APPEAL

1. On 10 March 2004 Glen Deeks (‘the Appellant’) sought leave to bring an ‘Appeal Against Decision of Arbitrator’ in the Workers Compensation Commission (‘the Commission’) against a decision, dated 19 February 2004.

1. The Respondent to the Appeal is Harmer Steel Erection Pty Limited (‘the Respondent’).

1. The appeal was referred to me for review on 10 August 2004.

1. 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

1. The Appellant states in the documents headed ‘Grounds of Appeal’ that:  “This is an appeal from order 4 of Arbitrator Johnstone of 19 February 2004 refusing to award the respondent worker’s costs of the proceedings”. 

1. Order 4 is “That there be no order as to costs”. 

1. The Appellant Worker seeks an order that the Arbitrator’s decision as to costs be set aside, and in lieu, it be determined that the Respondent Employer pay the Appellant Worker’s costs of the proceedings including the costs of the Appeal.

1. The Respondent Employer submits that the appeal should be dismissed because it does not meet the statutory requirements for leave to appeal to be granted, and that in any event the Arbitrator’s orders should be confirmed.

LEAVE

1. 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.”

1. The Appeal was lodged within 28 days of the Arbitrator’s decision in compliance with subsection 352(4) of the 1998 Act.

1. Whether the Appellant Worker can meet the threshold requirements of subsection 352(2) of the 1998 Act is in dispute as the decision under review only concerns an award of costs.

1. The Appellant Worker submits that the Arbitrator erred in not awarding him the costs of the proceedings and that it was denied procedural fairness by the Arbitrator in not seeking submissions on costs prior to making the order.

DISCUSSION AND FINDINGS

1. In the substantive proceedings, the Arbitrator found that:

   “The Respondent [Worker] has been unsuccessful in defending this application.  On the other hand the Applicant [Employer] has not been entirely successful either.  I think the costs should fall where they lie, and I therefore determine that there should no [sic] order as to costs”.

1. Subsection 352(2) of the 1998 Act provides that “the Commission is not to grant leave to appeal unless the amount of compensation at issue on the appeal” is at least $5,000 and more than 20% of the amount awarded in the decision appealed against.

1. 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). In the circumstances, 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.

1. When there is effectively no amount of compensation in dispute between the parties, the application of the threshold requirements in subsection 352(2) of the 1998 Act is not met.  Leave to appeal is therefore refused.

DECISION

1. Leave to appeal against the decision of the Arbitrator is refused.

Dr Gabriel Fleming

Deputy President  

10 August 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