Bar Beach Bowling Club Ltd v McGill

[2006] NSWWCCPD 2

WORKERS COMPENSATION COMMISSION

APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS

CITATION:Bar Beach Bowling Club Ltd v McGill [2006] NSWWCCPD 2

APPELLANT:  Bar Beach Bowling Club Ltd

RESPONDENT:  Geraldine McGill

INSURER:Allianz Australia Workers Compensation (NSW) Ltd

FILE NUMBER:  WCC 6353-04

DATE OF REGISTRAR’S DECISION:             14 September 2004

DATE OF APPEAL DECISION:  13 January 2006

SUBJECT MATTER OF DECISION: Appeal against Registrar’s determination in respect of costs. Whether section 263(1) of the Workplace Injury Management and Workers Compensation Act 1998 applies where there are several discrete injuries.

PRESIDENTIAL MEMBER:  Acting Deputy President Robin Handley

HEARING:On the papers

REPRESENTATION:  Appellant: Sparke Helmore Lawyers

Respondent: Bale Boshev Lawyers

ORDERS MADE ON APPEAL:  The Registrar’s determination of Ms McGill’s claim for costs is confirmed.

The Appellant, Bar Beach Bowling Club Ltd, is to pay Ms McGill’s costs in this appeal as agreed or assessed.

BACKGROUND TO THE APPEAL

1. On 22 September 2004, Bar Beach Bowling Club Ltd (“the Club”) filed an appeal against a costs determination made by the Registrar of the Workers Compensation Commission (‘the Commission’) dated 14 September 2004. Allianz Australia Workers Compensation (NSW) Ltd (“Allianz”) is the Club’s workers compensation insurer, which acted for and on behalf of the Club in the Commission proceedings. The Respondent to the appeal is Geraldine McGill.

1. An Arbitrator determined the dispute to which the costs determination relates on 10 March 2004. The Arbitrator’s Certificate of Determination recites that the parties had come to an agreed resolution of the issues in dispute and ordered that “the parties file an Agreement pursuant to section 66A of the 1987 Act [the Workers Compensation Act 1987] within 56 days of these Orders reflecting the Medical Assessment Certificate in these proceedings”. The Certificate noted that the parties had not, however, agreed on a costs order, and the Arbitrator therefore ordered “the Respondent pay the Applicant’s costs as agreed or assessed”.

1. In his ‘Statement of Reasons for Decision’, the Arbitrator noted that, at the teleconference conducted by him with the parties on 26 February 2004, the Club had argued that Ms McGill should not be awarded costs in these proceedings because she had previously brought proceedings in the Compensation Court of NSW in respect of an injury to her back, heard on 18 September 2002, and had not attempted to settle her claim for compensation in respect of permanent impairment to her right arm during the course of those proceedings. Ms McGill’s solicitor contended that the Compensation Court had no jurisdiction to hear her claim in respect of the right arm because the claim had not been duly made.

1. The Arbitrator, who did not have a copy of the Compensation Court file, or evidence of what transpired in the course of the Court proceedings, found he was “completely uninformed” as to the course of those Court proceedings and was unable “to definitively say that the Applicant should not have costs”. The Arbitrator concluded:

“I therefore exercise my discretion to follow the usual course of events and I make an order that the Respondent pay the Applicant’s costs as agreed or assessed. It is then up to the Applicant and the Respondent to either reach agreement or for them to go through the assessment process before a suitably appointed Costs Assessor who can make up his or her own mind on the evidence that the Applicant and the Respondent bring before him or her.”

1. On 16 April 2004, the parties having failed to reach an agreement on the issue of costs, the Club filed an application with the Commission for the assessment of costs, and subsequently filed written submissions. The Registrar delegated the assessment of costs to a different Arbitrator who made a determination dated 14 September 2004. This stated:

“1. Pursuant to an order dated 10 March 2004 the Respondent employer is liable to pay the Applicant’s costs of the proceedings as agreed or assessed.
2. The Employer is to pay the amount of $4,713.75 (inclusive of GST) to the Worker, being the costs of the proceedings.
3. The Employer is to pay the Worker the amount of $550.00 (inclusive of GST) being the Worker’s costs of the assessment.”

1. In his ‘Statement of Reasons for Decision’, the delegate noted the determination by the previous Arbitrator dated 10 March 2004:

   “is a binding Determination and the Submissions by the Employer does not [sic] provide a remedy by which a delegated Costs Assessor has power to set aside such a Determination. For that reason I propose to allow the Worker certain legal costs.”

1. The delegate then provided a Schedule setting out the amount claimed by Ms McGill, the amount he allowed, and his reasons. Of Ms McGill’s costs, the delegate allowed $4,688.75 of the $6,421.25 claimed, and $25.00 in respect of the $66.00 disbursements claimed, a total of $4,713.75. Because Ms McGill “has in the main been successful in her Application for Costs”, he assessed the amount of her costs in the assessment at $500.00 plus $50.00 in respect of GST.

1. The Club now submits that the Registrar failed to make a decision on the application of section 263 of the Workplace Injury Management and Workers Compensation Act 1998 (‘the 1998 Act’), having incorrectly found that the first Arbitrator made an order that the Club pay Ms McGill’s costs. Ms McGill’s solicitor disputes this. The parties’ submissions are discussed in more detail below.

ON THE PAPERS REVIEW

1. Section 354(6) of the 1998 Act states:

“(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.”

1. Having regard to Practice Directions Numbers 1 and 6, the documents that are before me, and the submissions by the parties, I am satisfied that I have sufficient information to proceed ‘on the papers’, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.  Neither party sought to adduce fresh evidence.

DISCUSSION

1. The relevant legislation concerning appeals to the Commission against an assessment of costs contained in the 1998 Act and the Workers Compensation Regulation 2003 (‘the 2003 Regulation’) is discussed by Deputy President Fleming in Berger v Moree Plains Shire Council [2005] NSW WCC PD 152 (‘Berger’) and need not be canvassed again here. However, I note that clause 119(1) of the 2003 Regulation limits the grounds on which an appeal may be made against the decision of the Registrar on an assessment of costs “to a matter of law” arising in the proceedings to determine the costs application.

1. The Club submits that the Registrar failed to make a decision on the application of section 263 of the 1998 Act. This states:

“(1) All claims for permanent impairment compensation or pain and suffering compensation in respect of an injury must, as far as practicable, be made at the same time.

(2) A legal practitioner or agent who acts for a worker when such a claim is made is not entitled to recover any costs from the worker or the employer in relation to any such claim made later (including such a claim made by later amendment of proceedings) unless there is good reason for the claim being made later.”

1. In written submissions to the Registrar, the Club contended that section 263 prevented Ms McGill’s solicitors from recovering costs because of previous proceedings in the Compensation Court of NSW in respect of the injury on 27 August 2000. These proceedings (No 1711 of 2002) resulted in terms of settlement being filed on 18 September 2002 for the payment of compensation in respect of a 12.5% permanent impairment of Ms McGill’s back. Clause 6 of the Terms of Settlement stated that “the reference to injuries to the left knee and right arm in paragraph 2 of the Application be struck out”.

1. An examination of Ms McGill’s amended application to the Compensation Court filed on 28 May 2002 shows that the nature of the injury was described as “Injury to the back, left knee and right arm”. The dates of injury were stated to be 2 March 2000 and 30 July 2000. An additional date of injury, 27 August 2000, was deleted in this amended application. An examination of the medical reports provided to the Registrar of the Commission in connection with the current proceedings indicates that Ms McGill suffered an injury to her right elbow on 27 August 2000 when she reached up to retrieve a till roll from overhead storage, the box of rolls fell, and she attempted to catch the box (see, for example, the report by Ms McGill’s general practitioner, Dr Paul Roth, dated 28 May 2001, and the report by Dr YAE Ghabrial, Orthopaedic and Spinal Surgeon, dated 17 September 2002).

1. Dr Ghabrial’s report dated 17 September 2002 was requested by Ms McGill’s solicitors and, according to the Club, received by them by fax on the morning of 18 September 2002, the day of the Compensation Court hearing. Dr Ghabrial had examined Ms McGill on 17 September 2002 and then made an assessment in respect of her back, left knee and right elbow. He assessed the “permanent loss of efficient use of the right upper limb at or above the elbow” at 15%.

1. The Compensation Court hearing was expedited at Ms McGill’s solicitors’ request (Notice of Motion dated 7 August 2002) because Ms McGill was to move to America in late September 2002. Ms McGill’s solicitors submit that the injury to her right elbow was not an injury related to the incident in which her back was injured on 2 March 2000 (the second mentioned date of injury, 30 July 2000, is the date she allegedly injured her left knee), being a separate injury that occurred on 27 August 2000. Thus, because the later application for compensation in respect of Ms McGill’s right arm pleaded a new injury, the matter was outside the jurisdiction of the Compensation Court, which could not have determined that issue.

1. Ms McGill’s solicitors, while conceding that where possible an applicant should make all lump sum claims at the same time, contend:

“this is not always possible, and in the Applicant’s case, not only was there no jurisdiction in the Court to proceed with her right arm claim, but also, the lump sum claim was not ready, and the fact of her relocation to the United States made it inconvenient for all the proceedings to be determined at the same time.”

1. Ms McGill’s solicitors note that Dr Ghabrial’s report was the first report in which Ms McGill’s right arm had been assessed. In all the circumstances, it was not practicable for the claim in respect of Ms McGill’s right arm to be made at the same time as that in respect of her back.

1. In Berger, the date of injury in both the relevant applications for compensation was the same. Deputy President Fleming said, at paragraph 82:

“It is in the interests of all parties, and the intention of the regulatory scheme, that claims and disputes in relation to one injury be made together whenever possible. This avoids prolonged litigation for the parties, minimises the costs of medical and other reports and, as can be seen in this matter, minimises legal costs.”

1. While it would have been preferable and in line with the intention of the NSW workers compensation scheme for Ms McGill’s claims in respect of both her back and right arm to have been dealt with on the same occasion, in my view, the facts of the present case are different from those in Berger because the injuries do not arise from the same incident – they are separate and unrelated. Therefore, section 263(1) of the 1998 Act, which refers to “an injury”, does not apply.

1. The Club’s submission in respect of section 263 is referred to by the Registrar’s delegate in his Statement of Reasons (at paragraph 2), although that section is not specifically mentioned. The delegate does not, however, specifically address the submission, stating merely that the determination as to costs made by the first Arbitrator is a binding determination, which he, as Costs Assessor, has no power to set aside. While this is correct, the Registrar, or in this case her delegate, nevertheless, has a discretion pursuant to clause 110 of the 2003 Regulation to determine whether the costs claimed are “fair and reasonable”, and could take into account the circumstances of Ms McGill’s two compensation claims in making his determination.

1. That the delegate did not address the application of section 263(1) is, in my view, an error of law, the Club having raised this as a submission and that submission being, in the circumstances, relevant: the Club was thereby denied procedural fairness. However, that error of law would not have affected the outcome because, as stated above, section 263(1) does not apply in this case, and because, moreover, I am not satisfied that the delegate did not exercise his discretion fairly and reasonably in examining and making an assessment in respect of the specific items of legal costs claimed by Ms McGill’s solicitors.

DECISION

1. The Registrar’s determination of Ms McGill’s claim for costs must therefore be confirmed.

COSTS

1. The Appellant, Bar Beach Bowling Club Ltd, is to pay Ms McGill’s costs in this appeal as agreed or assessed.

Robin Handley

Acting Deputy President  

13 January 2006

I CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF ROBIN HANDLEY, ACTING DEPUTY PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE