Arakelian v Freeman Adams Pty Ltd - [2007] NSWWCCPD 26

WORKERS COMPENSATION COMMISSION

DETERMINATION OF APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS

CITATION:Arakelian v Freeman Adams Pty Ltd [2007] NSWWCCPD 26
APPELLANT:  Hassmig (Jasmine) Arakelian
RESPONDENT:  Freeman Adams Pty Ltd
INSURER:GIO Workers Compensation (NSW) Ltd
FILE NUMBER:  WCC12069-05
DATE OF REGISTRAR’S DECISION:             3 March 2006
DATE OF APPEAL DECISION:  25 January 2007
SUBJECT MATTER OF DECISION: Appeal against the Registrar’s decision in relation to costs: professional costs - claim under Item 9.01 of the Compensation Costs Table in Schedule 6 of the Workers Compensation Regulation 2003; whether maximum costs specified in the Table before 17 March 2006 are inclusive of GST; disbursement – fee for private investigator’s report.
PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley
HEARING:On the papers
REPRESENTATION:  Appellant:      McCabe Partners Lawyers
Respondent:   no appearance

ORDERS MADE ON APPEAL: Clause 2 of the decision of the Registrar dated 3 March 2006 is revoked and the following clause is substituted:

“2. The Applicant’s costs of the proceedings are assessed at $5,308.00.”

The decision of the Registrar dated 3 March 2006 is otherwise confirmed.
There is no order as to the costs of this appeal.

BACKGROUND

On 21 March 2006, Hassmig (Jasmine) Arakelian filed an appeal against the Registrar’s assessment of costs in proceedings determined by a Commission Arbitrator. The Respondent to the appeal is Freeman Adams Pty Ltd (‘Freeman Adams’). Freeman Adams’ workers compensation insurer is GIO Workers Compensation (NSW) Ltd (‘GIO’).

Ms Arakelian was born in Lebanon on 12 April 1964 and is aged 42. She migrated to Australia in 1994, is now separated from her husband, and has a 10 year old dependent son. On the date of the accident, 7 March 2002, Ms Arakelian was employed by Freeman Adams, which is a recruitment agency, as a data entry officer working for the HSBC Bank. The accident occurred when a colleague moved her office chair and Ms Arakelian fell to the floor injuring her tailbone. She notified her employer of the accident on that day and claimed workers compensation on 19 March 2002.

On 26 May 2004, the Commission registered Ms Arakelian’s ‘Application to Resolve a Dispute’ in respect of her claim for (1) medical, hospital or related expenses, and (2) compensation for permanent impairment and pain and suffering. Freeman Adams filed a ‘Reply’ on 17 June 2004.

On 18 August 2004, an Arbitrator conducted a teleconference with the parties in the course of which the parties came to an agreed resolution of the issues in dispute. On 20 August 2004, the Arbitrator issued a Certificate of Determination in the following terms:

“1. The Application is to be discontinued.
2. The requirement to file a Notice of Discontinuance pursuant to Rule 74 is dispensed with.
3. The Respondent is to pay the Applicant’s costs as agreed or assessed.
The following is not a determination of the Commission, however, I note that the parties have agreed that the Respondent will pay the Applicant lump sum compensation on the basis of whole person impairment…

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.

Keep reading for free

Create a free CaseChat account to read Arakelian v Freeman Adams Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2007] NSWWCCPD 26
Decision Date: 25 January 2007

CaseChat Overview and Summary

In this case, Hassmig (Jasmine) Arakelian appealed against the Registrar’s decision regarding costs in workers compensation proceedings against Freeman Adams Pty Ltd. The appeal focused on the assessment of professional costs claimed under Item 9.01 of the Compensation Costs Table in the Workers Compensation Regulation 2003, the disallowance of the fee for a private investigator’s report, and the denial of an additional amount for GST on professional costs.

The primary legal issues revolved around the interpretation and application of the Compensation Costs Table, the reasonableness of the claimed disbursements, and the allowance of GST on professional costs. Ms Arakelian’s solicitors argued that the Delegate erred in disallowing their claim for costs of the assessment, the fee for the private investigator’s report, and in failing to allow recovery of GST on their professional costs. Freeman Adams and GIO contended that the Delegate’s assessment was correct and that the appeal should be dismissed.

The court examined the statutory framework and relevant regulations, noting that the appeal was limited to a matter of law. It reviewed the Delegate’s assessment of professional costs and found that while Ms Arakelian’s solicitors were largely unsuccessful, there was no proper basis to interfere with the exercise of the Delegate’s discretion. Regarding the private investigator’s report, the court determined that the report was not reasonably necessary, and thus, the Delegate did not err in disallowing the claim. However, the court found an error in the Delegate’s allowance of $100 under Item 2.05 for briefing a factual investigator, which should have been disallowed. The court also clarified that, given the timing of the services and the assessment, the disallowance of GST was appropriate under the then-applicable regulation.

In conclusion, the court rejected the grounds of appeal but reduced the awarded costs by $100 to correct the Delegate’s error. The final order adjusted the assessed costs from $5,408.00 to $5,308.00, confirming the Registrar’s decision otherwise. No order was made regarding the costs of the appeal.

Orders