Barber v BH & TF Knight - [2006] NSWWCCPD 350

WORKERS COMPENSATION COMMISSION

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

CITATION:Barber v BH & TF Knight and others [2006] NSWWCCPD 350
APPELLANT:  Gary Leonard Barber
FIRST RESPONDENT:  BH & TF Knight
SECOND RESPONDENT:  Robert West t/as Murrumburrah Rural Services
THIRD RESPONDENT:  Parkman Pastoral Co Pty Ltd t/as JR Parkman & Co
FIRST RESPONDENT’S INSURER:                 Allianz Australia Workers Compensation (NSW) Limited
SECOND RESPONDENT’S INSURER:            CGU Workers Compensation
THIRD RESPONDENT’S INSURER:                QBE Workers Compensation (NSW) Ltd
FILE NUMBER:  WCC13054-05
DATE OF REGISTRAR’S DECISION:             19 December 2005
DATE OF APPEAL DECISION:  18 December 2006
SUBJECT MATTER OF DECISION: Appeal against the Registrar’s decision in relation to costs: professional costs - claim under Items 2.06, 4.08, 4.12, 10.01 and Clause 5 of Schedule 6 of the Workers Compensation Regulation 2003; disbursements - investigator’s report, agency fees and solicitor’s travel expenses.
PRESIDENTIAL MEMBER:  Acting Deputy President Julian Martin
HEARING:On the papers
REPRESENTATION:  Appellant:      McCabe Partners Lawyers
First Respondent:     No Appearance
Second Respondent: No Appearance

Third Respondent: No Appearance

ORDERS MADE ON APPEAL: 1. The Registrar’s determination of a Claim for Costs in this matter, dated 19 December 2005 is amended in accordance with these reasons.

2.BH & TF Knight and Parkman Pastoral Co Pty Ltd t/as JR Parkman & Co are to pay Gary Leonard Barber $275 inclusive of GST in respect of his costs of the appeal.

BACKGROUND

Substantive Proceedings

On 21 January 2005 Gary Leonard Barber (‘Mr Barber’) commenced proceedings in the Workers Compensation Commission (‘the Commission’) against all three named Respondents claiming weekly benefits compensation, medical and related expenses and lump sum compensation.

A teleconference was held with the parties on 13 April 2005 and as the matter was unable to be resolved it was set down for conciliation/arbitration on 17 May 2005. On this occasion the dispute was resolved between the parties and a Certificate of Determination was issued on 19 May 2005 setting out the consent orders and notations agreed between the parties. The determination granted leave to Mr Barber to discontinue the proceedings against the Second Respondent (Robert West t/as Murrumburrah Rural Services) and included a consent order that the First and Third Respondents pay Mr Barber’s costs as agreed or assessed and that such costs be apportioned one-third to the First Respondent and two-thirds to the Third Respondent.

The parties did not agree on the costs and Mr Barber’s solicitor lodged an Application for Assessment of Costs on 1 August 2005.

The costs were determined by the Registrar’s delegate, a Commission Arbitrator (‘the Delegate’) on 1 November 2005. Due to an administrative error Mr Barber’s submissions in reply, enclosed in a letter dated 25 October 2005, were not considered by the Delegate and he was asked by the Registrar to review his costs decision having regard to those submissions.

An Amended Certificate of Determination of costs was issued by the Delegate on 19 December 2005. The decision is as follows:

“1.Pursuant to an order for costs made on 19 May 2005,…

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 350
Decision Date: 18 December 2006

CaseChat Overview and Summary

In the case of Barber v BH & TF Knight, the appeal was against the Registrar’s decision in relation to costs. The Appellant, Gary Leonard Barber, had commenced proceedings against the First Respondent, BH & TF Knight, and the Third Respondent, Parkman Pastoral Co Pty Ltd t/as JR Parkman & Co, among others. The costs were initially determined by the Delegate, and later amended following an administrative error. Barber appealed the amended decision, arguing that the Delegate had erred in their assessment of certain professional costs and disbursements.

The court examined the appeal on the basis that the parties had not contested the procedural aspect of the appeal, and sufficient information had been provided. The issues in dispute primarily concerned the assessment of professional costs under various items of the Workers Compensation Regulation 2003 and the allowance of certain disbursements. Barber's solicitor argued that the Delegate had misapplied the regulations in several respects, leading to an under-assessment of costs.

The court found that the Delegate's assessment was generally correct, though there were some errors. For instance, the court agreed with Barber that the Delegate had erred in disallowing the worker's statement prepared by an investigator, and allowed an additional $165 for this disbursement. Similarly, the court found that the Delegate had miscalculated Barber's travel expenses and allowed an additional $29.50 for this item.

As a result of the review, the total costs were increased by $194.50 to $12,676.85. The court also ordered that BH & TF Knight and Parkman Pastoral Co Pty Ltd t/as JR Parkman & Co pay Barber's costs of the appeal in the sum of $275 inclusive of GST.

Orders