Brady v Moree Plains Shire Council - [2006] NSWWCCPD 167

WORKERS COMPENSATION COMMISSION

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

CITATION:Brady v Moree Plains Shire Council [2006] NSWWCCPD 167
APPELLANT:  Daryl James Brady
RESPONDENT:  Moree Plains Shire Council
INSURER:Gallagher Bassett Services (formerly Allianz Australia Worker’s Compensation (NSW) Ltd)
FILE NUMBER:  WCC 20380-04
DATE OF REGISTRAR’S DECISION:             13 April 2005
DATE OF APPEAL DECISION:  31 July 2006
SUBJECT MATTER OF DECISION:                Costs; procedural fairness
PRESIDENTIAL MEMBER:  Acting Deputy President Julian Martin
HEARING:On the papers
REPRESENTATION:  Appellant:      McCabe Partners Lawyers
Respondent:   A.O. Ellison & Co

ORDERS MADE ON APPEAL: 1. Paragraphs 2 and 4 of the Decision of the Registrar’s Delegate, dated 13 April 2005 are revoked and the following orders made in their place:

“2. The Applicant’s costs of the proceedings are assessed at $6,887.75.
4. The Respondent is to pay the amount of $6,887.75 to the Applicant if those costs have not already been paid.”
2.No order as to costs of the appeal.

BACKGROUND

On 28 May 2004 Daryl John Brady (‘Mr Brady’) commenced proceedings against Moree Plains Shire Council (‘Moree Council’) in the Workers Compensation Commission (‘the Commission’) seeking lump sum compensation. Liability was not in issue.

The matter was resolved between the parties during a telephone conference and a Certificate of Determination dated 26 August 2004 was issued. The Certificate included an order that the Respondent (‘Moree Council’) pay the Applicant’s (‘Mr Brady’) costs as agreed or assessed.

On 10 December 2004 Mr Brady filed an Application for Assessment of Costs.

On 14 December 2004 the Registrar sent a copy of Mr Brady’s Application for Assessment of Costs to Allianz Australia Worker’s Compensation (NSW) Ltd (‘Allianz’) pursuant to Clause 101 of the Workers Compensation Regulations 2003 (‘the Regulations’). Allianz was advised that written submissions in reply to the Application for Assessment of Costs were to be filed within 14 days and must be served on Mr Brady at the same time as, or prior to, filing with the Commission.

On 14 December 2004 a letter was sent to Mr Brady’s solicitor enclosing a copy of the letter sent to Allianz and stating that Mr Brady has 7 days from the date of service of Moree Council’s written submissions to file and serve written submissions in reply. The letter informed Mr Brady’s solicitor that costs will be determined by review of the Application for Assessment of Costs and written submissions.

On 22 December 2004 Moree Council’s solicitor filed written submissions in Reply and served a copy on Mr Brady’s solicitor on the same day.

Mr Brady’s solicitor made no response to the written submissions in Reply from Moree Council’s solicitors and an assessment of costs was determined by the Registrar’s delegate, a Commission Arbitrator, resulting in a decision handed down on 13 April 2005.

On 29 April 2005 Mr Brady filed an appeal against the Registrar’s assessment of costs. Moree Council filed a Notice of Opposition to the appeal, together with written submissions on 20 May 2005.

On 14 February 2006…

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.

Continue reading Brady v Moree Plains Shire Council

Details

AGLC: Brady v Moree Plains Shire Council [2006] NSWWCCPD 167
Case: [2006] NSWWCCPD 167
Decision Date: 31 July 2006

CaseChat Overview and Summary

In this case, Daryl James Brady appealed a decision of the Registrar regarding the assessment of costs in his workers compensation claim against Moree Plains Shire Council. The key issue for the court was whether the Registrar's assessment of costs was fair and lawful. Brady argued that there was a denial of procedural fairness because the Registrar allowed Moree Council to file written submissions in reply to his Application for Assessment of Costs. The court found that the Registrar followed the required procedures under the Workers Compensation Regulations 2003 and did not commit any procedural unfairness. Additionally, the court disallowed Brady's attempt to introduce fresh evidence during the appeal, as it was outside the permitted scope.

The court also reviewed the specific items of costs claimed by Brady. The Registrar had disallowed certain costs, such as fees for a private investigator's report, which the court found was not reasonably incurred given that liability was not in dispute. However, the court allowed a portion of the fees for obtaining a witness statement from Brady, considering the circumstances of the case. The court further corrected an arithmetical error in the Registrar's decision, reducing the total costs to be paid by Moree Council to $6,887.75. The court made no order regarding the costs of the appeal.

Orders