APPEALING FROM WORKCOVER – IT CAN COST YOU
November 26, 2020
Armet v CFC Consolidated Pty Ltd  WADC 142
The Appellant, a worker, sought leave to appeal from two arbitration decisions of WorkCover WA.
With the Appellant initially self-represented, a number of interlocutory issues arose, including the Appellant’s grounds of appeal being struck out in each appeal.
The appeals came on for hearing before Her Honour Stewart DCJ on
8 and 12 August 2019. Following the hearing the parties were ordered to file supplementary submissions. Following further issues being raised with the materials produced by WorkCover for the appeals, further hearings took place on
27 February 2020 and 22 June 2020.
Her Honour was required to determine the applications for leave to appeal, the substantive appeals (if leave was granted), and the appropriate costs orders to be made.
In relation to costs, the Respondent applied (on the assumption the appeal was dismissed) for a special costs order, having regard to the volume of material filed and substantial amendments made by the Appellant to the appeals.
Her Honour observed that an appeal from WorkCover requires inter alia:
- the involvement of a question of law
- at least $5,000 be in dispute.
Her Honour concluded that the amount in each appeal did not meet the $5,000 threshold. In any event, the appeals would have been dismissed on the basis that 2 of the 3 grounds did not involve a question of law and that whilst ground 3 involved an alleged error of law, it had not been established.
In relation to costs, Her Honour summarised the Rules and case authorities relating to the Court’s discretion to award costs and on the making of special costs orders.
Her Honour concluded that the Respondent had failed to demonstrate that the maximum allowable under the Scale was inadequate or that such inadequacy arose due to the unusual difficulty, complexity, or importance of the matter. Accordingly a special costs order was not made.
Implications of Decision
This decision highlights the importance of ensuring appeal applications meet the basic requirements under s247 of the Workers’ Compensation and Injury Management Act, including that they involve an alleged error of law. The failure to meet the threshold requirements will inevitably lead to leave to appeal not being granted (and costs consequences flowing from this).
The decision also makes it clear that, whilst a worker is at risk of an adverse costs order in an unsuccessful application for leave to appeal, the usual requirements to obtain a special costs order apply and the onus remains on the party seeking that order.
Further information / assistance regarding the issues raised in this article is available from the authors, Daniel Costanzo – Partner and Daniel Coster – Senior Associate or your usual contact at Moray & Agnew.
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