Arifagic v Gate Gourmet Services Pty Limited - [2007] NSWWCCPD 94

WORKERS COMPENSATION COMMISSION

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

CITATION:Arifagic v Gate Gourmet Services Pty Limited [2007] NSWWCCPD 94
APPELLANT:  Sabaheta (Sabrina) Arifagic
RESPONDENT:  Gate Gourmet Services Pty Limited
INSURER:QBE Workers Compensation (NSW) Limited
FILE NUMBER:  WCC7013-06
DATE OF REGISTRAR’S DECISION:             22 August 2006
DATE OF APPEAL DECISION:  13 April 2007
SUBJECT MATTER OF DECISION: Appeal against the Registrar’s decision in relation to costs: professional costs - claim under Items 2.04A, 2.05, 2.06, 4.03B, 4.07, 4.08, 4.09, 4.12 and 10.01 of the Compensation Costs table in Schedule 6 of the Workers Compensation Regulation 2003; disbursements - medical report and investigator’s report.
PRESIDENTIAL MEMBER:  Acting Deputy President Julian Martin
HEARING:On the papers
REPRESENTATION:  Appellant:      McCabe Partners Lawyers
Respondent:   Hicksons Lawyers

ORDERS MADE ON APPEAL: 1. The Registrar’s determination of a Claim for Costs in this matter, dated 22 August 2006 is amended in accordance with these reasons.
2.No order as to costs of the appeal.

BACKGROUND

Substantive Proceedings

On 15 December 2004 Sabaheta (Sabrina) Arifagic (‘Ms Arifagic’) commenced proceedings in the Workers Compensation Commission (‘the Commission’) against Gate Gourmet Services Pty Limited (‘Gate Gourmet’) claiming weekly benefits compensation, medical and related expenses and lump sum compensation.

A teleconference was held with the parties on 23 February 2005 when the matter was referred to an Approved Medical Specialist. As a result of this referral a Medical Assessment Certificate was issued on 6 December 2005 and a second teleconference was listed for 20 February 2006 when the matter resolved. The Arbitrator issued a Certificate of Determination on 21 February 2006 which was amended on 27 February 2006. The Amended Certificate of Determination included an order that Gate Gourmet pay Ms Arifagic’s “costs as agreed or assessed”.

The parties did not agree on costs and Ms Arifagic’s solicitor lodged an Application for Assessment of Costs on 4 May 2006.

The costs were determined by the Registrar’s delegate, a Commission Arbitrator (‘the Delegate’) on 22 August 2006. The decision is as follows:

“1.Pursuant to the issue of a Certificate of Determination on 21 February 2004 [sic] the Respondent employer is liable to pay the Applicant’s costs of the proceedings as agreed or assessed.
2.The Applicant’s costs of the proceedings are assessed at $7,257.00 inclusive of GST.
3.The Applicant’s costs of the assessment are assessed at $605.00 inclusive of GST.
4.The Respondent is to pay the amount of $7,862.00 inclusive of GST to the Applicant if those costs have not already been paid.”

On 8 September 2006 Ms Arifagic lodged an Appeal from the Delegate’s decision.

ON THE PAPERS

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.”

Gate Gourmet submit that the matter should be dealt with ‘on the papers’ whilst Ms Arifagic is silent on…

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: [2007] NSWWCCPD 94
Decision Date: 13 April 2007

CaseChat Overview and Summary

This case concerns an appeal against the Registrar’s decision in relation to costs in a workers compensation matter. The appellant, Sabaheta (Sabrina) Arifagic, appealed the Registrar’s decision dated 22 August 2006 regarding the assessment of professional costs and disbursements in her claim against Gate Gourmet Services Pty Limited, the respondent. The insurer for the respondent is QBE Workers Compensation (NSW) Limited. The appeal was heard on the papers, and the Acting Deputy President Julian Martin made the decision on 13 April 2007.

The key issues in dispute were whether the Delegate, who assessed the costs, erred in determining the costs under specific items of the Compensation Costs table in Schedule 6 of the Workers Compensation Regulation 2003, and whether the Delegate appropriately assessed the disbursements claimed. The appellant's solicitor argued that the Delegate made errors in law and discretion in determining the costs, particularly in relation to professional costs and specific disbursements such as the medical report and the private investigator's report. The respondent, Gate Gourmet, defended the Delegate's decision, arguing that no errors of law were made.

The Acting Deputy President reviewed the Delegate’s decision and found that while there were some errors in the determination, they did not warrant a complete re-assessment of all costs. Specifically, the Acting Deputy President found that the Delegate erred in overlooking certain material in the private investigator’s report, which led to an inappropriate disallowance of costs under Item 2.05. The Acting Deputy President also found that the Delegate had misapplied the amount allowed for conduct money under Item 4.03B and failed to provide adequate reasons for disallowing the claim under Item 10.01. The Acting Deputy President further found that the Delegate appropriately assessed the costs for the medical report and disallowed the claim for the private investigator’s report. As a result, the Acting Deputy President amended the Registrar’s determination to increase the total costs by $52.30 to $7,914.30.

The Acting Deputy President made no order as to the costs of the appeal, as Gate Gourmet did not satisfy the conditions for such an order under the Workplace Injury Management and Workers Compensation Act 1998.

Orders