Burrell v Namoi Cotton Co-Operative Limited - [2007] NSWWCCPD 15

WORKERS COMPENSATION COMMISSION

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

CITATION:Burrell v Namoi Cotton Co-Operative Limited [2007] NSWWCCPD 15
APPELLANT:  Rhonda Burrell
RESPONDENT:  Namoi Cotton Co-Operative Limited
INSURER:Allianz Australia Workers Compensation (NSW) Limited
FILE NUMBER:  WCC8817-05
DATE OF REGISTRAR’S DECISION:             8 November 2005
DATE OF APPEAL DECISION:  17 January 2007
SUBJECT MATTER OF DECISION: Appeal against the Registrar’s decision in relation to costs: professional costs - claim under Items 1.01, 2.04, 2.06, 4.08, 4.09, 4.11, 4.12 and 10.01 of the Compensation Costs Table in Schedule 6 of the WorkersCompensation Regulation 2003; disbursements - investigator’s report, applicant’s and solicitor’s travel expenses.
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 8 November 2005 is amended in accordance with these reasons.
2.No order as to costs of the appeal.

BACKGROUND

Substantive Proceedings

On 13 October 2004 Rhonda Burrell (‘Ms Burrell’) commenced proceedings in the Workers Compensation Commission (‘the Commission’) against Namoi Cotton Co-Operative Limited (‘Namoi Cotton’) claiming weekly benefits compensation, medical and related expenses and lump sum compensation.

A teleconference was held with the parties on 27 January 2005 and as the matter was unable to be resolved it was set down for conciliation/arbitration on 11 April 2005. On this occasion the parties reached agreement and a Certificate of Determination was issued on 26 April 2005 which included an order that Namoi Cotton pay Ms Burrell’s costs ‘as agreed or assessed’.

The parties did not agree on the costs and Ms Burrell’s solicitor lodged an Appeal for Assessment of Costs on 8 June 2005.

The costs were determined by the Registrar’s delegate, a Commission Arbitrator (‘the Delegate’) on 8 November 2005. The decision is as follows:

“1. Pursuant to an order for costs made on 26 April 2005, the Respondent is liable to pay the Applicant’s costs as agreed or assessed.
2.The Applicant’s costs of the substantive proceedings are assessed in the sum of $7,439.35.
3.No order as to the costs of the assessment.
4.The Respondent is, therefore, to pay to the Applicant a total amount of $7,439.35, if those costs have not already been paid.”

On 24 November 2005 Ms Burrell 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.”

Namoi Cotton submit that the matter should be dealt with ‘on the papers’ whilst Ms Burrell is silent on this issue.

I have both the Commission file regarding the cost dispute and the appeal file. In addition I have the substantive file and am satisfied that I have sufficient information to proceed ‘on the papers’ without holding…

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 Burrell v Namoi Cotton Co-Operative Limited

Details

AGLC: Burrell v Namoi Cotton Co-Operative Limited [2007] NSWWCCPD 15
Case: [2007] NSWWCCPD 15
Decision Date: 17 January 2007

CaseChat Overview and Summary

Rhonda Burrell brought a workers' compensation claim against Namoi Cotton Co-Operative Limited for weekly benefits, medical and related expenses and lump sum compensation. The matter was settled by a Certificate of Determination, which ordered Namoi Cotton to pay Burrell's costs "as agreed or assessed". The parties could not agree on the costs, so Burrell's solicitor lodged an Appeal for Assessment of Costs. The Delegate assessed Burrell's costs at $7,439.35, and Burrell appealed that decision. Burrell's solicitor submitted that the Delegate erred in relation to various items of professional costs and disbursements. The Acting Deputy President found that the Delegate had not erred in relation to most of the items of professional costs. However, the Acting Deputy President found that the Delegate had erred in disallowing the amount Burrell's solicitor claimed for requesting a review of the claim from the insurer. The Acting Deputy President also found that the Delegate had erred in disallowing the amount Burrell's solicitor claimed for a private investigator's report, and increased the amount allowed for that item by $165. The Acting Deputy President otherwise dismissed the appeal and made no order as to costs of the appeal.

Orders