Albarracin v Pirelli Cables Australia Ltd - [2006] NSWWCCPD 351

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS
CITATION:Albarracin v Pirelli Cables Australia Ltd [2006] NSWWCCPD 351
APPELLANT:  Maria Albarracin
RESPONDENT:  Pirelli Cables Australia Ltd
INSURER:Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:  WCC16759-05
DATE OF REGISTRAR’S DECISION:             10 January 2006
DATE OF APPEAL DECISION:  19 December 2006
SUBJECT MATTER OF DECISION: Appeal against the Registrar’s decision in relation to costs: claim under Item 2.04A; whether maximum costs specified in the Compensation Costs Table in Schedule 6 of the Workers Compensation Regulation 2003 before 17 March 2006 are inclusive of GST.
PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION:  Appellant:      Maurice May Lawyers
Respondent:   Sparke Helmore Lawyers

ORDERS MADE ON APPEAL: The Registrar’s determination of Ms Albarracin’s costs in this matter, dated 10 January 2006, is amended in accordance with these reasons.

The Respondent, Pirelli Cables Australia Ltd is to pay the Appellant, Ms Albarracin $250 inclusive of GST in respect of her costs in this appeal.

BACKGROUND TO THE APPEAL

On 17 January 2006, Maria Albarracin filed an appeal against a costs determination made by the Registrar of the Workers Compensation Commission (‘the Commission’) on 10 January 2006. The Respondent to the appeal is Pirelli Cables Australia Ltd (‘Pirelli’). On 24 February 2006, Pirelli filed a ‘Notice of Opposition’ to the appeal. Pirelli’s workers compensation insurer is Allianz Australia Workers Compensation (NSW) Ltd (‘Allianz’).

Ms Albarracin was born on 4 September 1951 and is aged 55. She claims to have suffered a psychiatric/psychological injury in the course of her employment with Pirelli on 8 May 2003. By letter dated 6 June 2003, Allianz denied liability for the injury. On 12 February 2004, the Commission registered Ms Albarracin’s ‘Application to Resolve a Dispute’ in respect of her claim for weekly compensation and medical expenses. Pirelli filed its ‘Reply’ on 4 March 2004.

On 21 May 2004, an Arbitrator conducted a teleconference with the parties, during the course of which the parties came to an agreed resolution of the issues in dispute. On 24 May 2004, the Arbitrator issues a Certificate of Determination in the following terms:

“1. That without admission of liability the Respondent is to reaccredit the Applicant with half her leave entitlement taken during the period 9 May 2003 to 12 June 2003.
2. That the Respondent is to pay the Applicant’s s60 expenses up to $704.10 in respect of s60 expenses to date.
3. That the Respondent pay the Applicant’s costs as agreed or assessed.”

On 4 October 2005, the parties having failed to agree on the costs payable, Ms Albarracin’s solicitors lodged an ‘Application for Assessment of Costs’ with the Commission in respect of their Bill of Costs dated 29 September 2004. Allianz’s submissions were received on 2 November 2005, and Ms Alberracin’s solicitors’ response on 9 November 2005.

The Registrar delegated the assessment of costs to a Commission Arbitrator (‘the Delegate’) who made a determination dated 10 January 2006. The Certificate of Determination…

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: [2006] NSWWCCPD 351
Decision Date: 19 December 2006

CaseChat Overview and Summary

In the case of Albarracin v Pirelli Cables Australia Ltd, Maria Albarracin, the appellant, sought to appeal a decision made by the Registrar of the Workers Compensation Commission, concerning the assessment of her costs. The appeal was lodged against Pirelli Cables Australia Ltd, the respondent, and its insurer, Allianz Australia Workers Compensation (NSW) Ltd. The appeal focused on two key issues: whether the maximum costs specified in the Compensation Costs Table in Schedule 6 of the Workers Compensation Regulation 2003 before 17 March 2006 were inclusive of GST, and whether the Delegate made an error of law by disallowing recovery of the costs claimed under Item 2.04A of the Compensation Costs Table.

The Acting Deputy President, Robin Handley, reviewed the submissions and found that the Delegate was correct in disallowing a claim for GST to be added to the costs claimed in respect of Items in the Compensation Costs Table, as the relevant services were performed before the amendment to the Regulation took effect on 17 March 2006. However, the Acting Deputy President determined that Ms Albarracin's solicitors should be allowed an additional $150 in respect of their professional costs under Item 2.04A, as it was fair and reasonable to allow recovery of the costs claimed.

Consequently, the Registrar's determination of Ms Albarracin's costs in this matter, dated 10 January 2006, was amended in accordance with these reasons. The total amount allowed in respect of Ms Albarracin's solicitors' costs was increased from $2,932.50 to $3,082.50. Additionally, the Acting Deputy President ordered that Pirelli Cables Australia Ltd is to pay the Appellant, Ms Albarracin $250 inclusive of GST in respect of her costs in this appeal.

Orders