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Berger v Moree Plains Shire Council

Berger v Moree Plains Shire Council

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Case Copied 12 December 2005 79 min read

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WORKERS COMPENSATION COMMISSION
APPEAL AGAINST A DECISION OF THE REGISTRAR IN RELATION TO COSTS
CITATION:Berger v Moree Plains Shire Council [2005] NSW WCC PD 152
APPELLANT:  Craig Anthony Berger
RESPONDENT:  Moree Plains Shire Council
INSURER:Allianz Australia Workers Compensation (NSW) Ltd
FILE NUMBER:  WCC18301-2004
DATE OF REGISTRAR’S DECISION:             8 April 2005
DATE OF APPEAL DECISION:  12 December 2005
SUBJECT MATTER OF DECISION:                Appeal against assessment of costs pursuant to an order for costs made by an Arbitrator. Workers Compensation Commission Regulation 2003, Schedule 6.
PRESIDENTIAL MEMBER:  Dr Gabriel Fleming
HEARING:On the papers.
REPRESENTATION:  Appellant:      McCabe Partners, Lawyers
Respondent:  A.O. Ellison & Co, Solicitors

ORDERS MADE ON APPEAL: The Registrar’s ‘Determination of a Claim for Costs’ in this matter, dated 8 April 2005, is amended in accordance with these reasons and the Respondent is to pay the Appellant’s costs as assessed at $ 5,871.62
No order as to the costs of the Appeal.

INDEX
  PAGE
Background to the Appeal   2
On the Papers Review   3
Jurisdiction   3
Part 19 of the Workers Compensation Regulation 2003   3
Did the Registrar have Power to Assess Costs at first Instance?   4
Identification of “Matters of Law” on Appeal   5

The Costs Regime in the Commission   6
The Workplace Injury Management and Workers Compensation Act 1998           7
The Workers Compensation Regulation 2003   8
The Legal Profession Act 2004 and the Legal Profession Regulation 2005         10
Summary  15

“Matters of Law” on Appeal  15
Multiple Applications to the Commission  15
Reduction of the Schedule 6 Prescribed Rate  19
Duplication of an Activity/Item in the Compensation Costs Table                    22
Evidence of Costs Events  24
Multiple Teleconferences  25
Factual Investigation Reports  26
Workers Travel Expenses  30
GST  31

Decision 36
Costs 36
Background to the Appeal
1.On 5 May 2005 Craig Anthony Berger (‘the Appellant’) filed an appeal against a decision of the Registrar, in relation to a claim for costs of proceedings heard and determined by a Commission Arbitrator.
2.The Respondent to the appeal is Moree Plains Shire Council. Allianz Australia Workers Compensation (NSW) Ltd is the Council’s workers compensation insurer. It acted for, and on behalf of the Council in the Commission proceedings.

3.The dispute to which the costs assessment relates was finalised in the Commission, on 26 September 2003, by way of the parties filing an ‘Agreement to Discontinue Proceedings in the Commission’, pursuant to Rule 74(2) of the Workers Compensation Commission Rules 2003 (‘the WCC Rules’). The discontinuance annexed the terms of the parties’ agreement to settle the dispute, which included an agreement that ‘the Respondent to pay the Applicant’s costs as agreed or assessed”. The parties agreement, including as to costs, was registered in the Commission pursuant to section 66A of the Workers Compensation Act 1987 (‘the 1987 Act’) on 8 October 2003.

4.On 9 November 2004 Mr Berger applied to the Registrar for an assessment of costs. A Commission Arbitrator made the assessment of costs as the delegate of the Registrar (and is referred to throughout this decision as ‘the…

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: [2005] NSWWCCPD 152
Decision Date: 12 December 2005

CaseChat Overview and Summary

In the matter of Berger v Moree Plains Shire Council, the appeal was filed by Craig Anthony Berger against the Registrar's decision on the assessment of costs related to a workers compensation dispute. The appeal was heard on the papers, and the Court determined that the Registrar had jurisdiction to review the assessment on matters of law. The Court examined various legal issues, including the reduction of the Schedule 6 Prescribed Rate, duplication of an activity/item in the Compensation Costs Table, evidence of costs events, and multiple teleconferences. The Court found errors in the Registrar's assessment and amended the assessment accordingly. The final amended assessment of costs was $5,871.62, which the Respondent, Moree Plains Shire Council, was ordered to pay to the Appellant. The Court did not order any costs for the appeal.

Orders